Even its most vehement critics generally concede that natural law is central to the formation of Western civilization and has significantly influenced most Western legal traditions. There’s little question that natural law thought, especially as mediated by early-modern Protestant natural law thinkers, was a substantive reference-point for the U.S. Constitution’s drafters. Some scholars, like Paul R. DeHart, have even argued that the unspoken moral theory underlying the U.S. Constitution is largely one of natural law.
As a form of moral reasoning, natural law stands in explicit opposition to skepticism, utilitarianism, and nihilism (of the soft or hard variety) more generally. Moreover, contrary to popular perception, natural law is not an idiosyncratically “Catholic thing.”
While Catholics have been at the forefront of natural law reflection in the past and our own time, it also embraces, to varying degrees, pagans like Aristotle and Cicero, Jewish philosophers such as Maimonides and David Novak, more secular-minded people like Lon Fuller, as well as Protestant minds such as Hugo Grotius and Emer de Vattel. The latter’s Les droit des gens (1758) represents perhaps the most concise articulation of the law of nations to which Vermeule refers as it developed over the preceding seventeen centuries.
However, when we read Vattel—and any number of scholars working in the natural law tradition—we discover two things. First, they affirm that law does have a role in promoting the common good. No less than Thomas Aquinas defined law as “an ordinance of reason for the common good, made by him who has care of the community, and promulgated.”
The second point is that natural law also holds that the public authorities (legislators, judges, etc.) of a given political community (e.g., the United States, the state of Tasmania, the City of Jerusalem, etc.) are responsible for what has been called “the political common good.” This matters, because the primary and immediate object of the political common good is not the all-round moral fulfillment of every member of that community.
That being the case, the political common good limits what the public authorities may do vis-à-vis the promotion of virtue. Discussion of this point and the way that it underscores the indispensability of human free choice for human flourishing cannot, I submit, be found in Vermeule’s essay—perhaps because it would substantially circumscribe judges from acting in ways that Vermeule wants them to act.
The manner in which natural law reasoning limits the scope of positive law to shape the moral culture was addressed in detail by Aquinas. Consider, for example, Aquinas’ definition of the purpose of law in his Summa Theologiae: “For the end of human law is the temporal tranquility of the state, which end law effects by directing external actions, as regards those evils which might disturb the peaceful condition of the state” (ST I-II, q. 98 a.1c).
The words “external actions” tell us that positive law is concerned primarily with the demands of justice and peace. Aquinas spells out the fuller significance of this when he explains:
Because human law is ordained for the civil community, implying mutual duties of man and his fellows: and men are ordained to one another by outward acts, whereby men live in communion with one another. This life in common of man with man pertains to justice, whose proper function consists in directing the human community. Wherefore human law makes precepts only about acts of justice …. (ST I-II q.100 a. 2c)
Then, as if to make sure his readers get the point, Aquinas states: “and if it commands acts of other virtues, this is only in so far as they assume the nature of justice” (ST I-II q.100 a. 2c).
Underlying this claim is Aquinas’ argument that not all acts of virtue have the political common good as their object. The object of many acts of virtue is the private good of individuals, families and other communities. Such acts fall outside the immediate scope of the political common good for which the rulers are responsible.
This is made clearer when Aquinas answers the question, “Whether human law prescribes acts of all the virtues?” His response is as follows:
The species of virtues are distinguished by their objects … Now all the objects of virtues can be referred either to the private good of an individual, or to the common good of the multitude: Thus, matters of fortitude may be achieved either for the safety of the state, or for upholding the rights of a friend, and in like manner with the other virtues. But law … is ordained to the common good. Wherefore there is no virtue whose acts cannot be prescribed by the law. Nevertheless human law does not prescribe concerning all the acts of every virtue: but only in regard to those that are ordainable to the common good—either immediately, as when certain things are done directly for the common good—or mediately, as when a lawgiver prescribes certain things pertaining to good order, whereby the citizens are directed in the upholding of the common good of justice and peace. (ST I-II, q.96 a. 3c)
To be sure, Aquinas does not regard justice and peace as having minimalist content. But to Aquinas’ mind, the law’s proper concern for justice and tranquility does not authorize the state to promote all acts of virtue. In this regard, natural law’s conception of the political common good puts principled constraints on using positive law to shape the free choices and actions of individuals and groups who live within the boundaries of a given political community.
Vermeule’s common-good constitutionalism skips over these important nuances and distinctions. By Vermeule’s account, the common good to be promoted by the law does appear to be the complete fulfillment (in the sense of all-round human flourishing in virtue) of all members of a given political community. That, I’d suggest, is not Aquinas’ position.
I’m all for legal systems grounded in natural law and the ius gentium. They truly do make the difference between civilization and societies built on mere sophisms. That same natural law, however, takes substantive limits to state power and, therefore, liberty very seriously—something which Vermeule does not. To that extent, Vermeule’s common-good constitutionalism puts him at odds with an important dimension of the very tradition which he wants to uphold.
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