Discover more from Postliberal Order
In God We Trust
The Postliberals feature in the March issue of France’s L’incorrect magazine
In this special edition of Postliberal Order, we highlight portions of a dossier just released in the French conservative monthly L’incorrect, no. 62 (March 2023): 42–44, 47–51. L’incorrect’s full dossier is available here. Featured below are:
Gladden Pappin, “In God We Trust: Toward a Postliberal Order?”
Patrick Deneen, “We Are Witnessing the Beginning of the End of the Liberal Order” (interviewed by Rémi Carlu)
Adrian Vermeule: “Rights Must Be Ordered toward the Common Good” (interviewed by Rémi Carlu)
Pappin: In God We Trust: Toward a Postliberal Order?
What if our salvation comes from across the Atlantic? Often reduced to being the source of progressive delusions, the United States has also become the scene of an intellectual reaction very critical of liberalism, seeking to found a political order solicitous of the common good. A driver of many of these initiatives, Gladden Pappin shows us the postliberal movement from the inside.
It has been said that there is no real Right in the United States—that because the United States is a liberal country, American conservatism is simply the defense of liberalism. For many years, American conservatives reacted angrily to this suggestion. Russell Kirk, a theorist of the conservative tradition, argued that the American revolution, unlike the Revolution of 1789, was not really revolutionary. Yet the United States has not been spared from the overall trajectory of left-liberalism. Indeed, it has become a principal source of the most radical developments that now pour forth—often from the world of business and finance that American conservatives have defended.
New developments have been rapidly changing the American intellectual Right, however. Over the last decade and especially since 2016, it has become clear that the American “liberal conservative” or “right-liberal” consensus has not conserved anything. The traditional definition of the family has been destroyed, sexual propaganda has been unleashed on children, manufacturing has left for China and Republican presidents have pursued “forever wars” that have tarnished American credibility. Over time, it has become clear to many right-wing intellectuals that the Republican Party serves small business fortunes and flatters social conservatives, while advancing a neoconservative foreign policy agenda.
The last five years have truly witnessed a jolt on the intellectual right in the United States. As I have been involved in many of the efforts to shake things up, as it were, I would like to provide readers of L’incorrect my view of what has happened. Principally, the American intellectual Right has begun to build a new intellectual framework for analyzing and critiquing our liberal regime, as well as for constructing new approaches toward law and public policy that will substantially orient the American state toward protecting and preserving a traditional way of life.
Several terms are used to describe the new intellectual movement. The most common term is postliberals, indicating that we reject liberal assumptions as well as prescriptions concerning politics. At other times, we go by common good conservatives, indicating that we are on the right but oriented more around the common good rather than individual liberty. In religious contexts we are sometimes called integralists—not because we are Lefebvrists, but because we think that modern secularism has failed and that liberalism has become its own political religion. A related movement called national conservatism has appeared, as well, with a focus on uniting national political forces around a common term.
As with so many other changes, 2016 was a watershed moment on the American right. In spite of his many flaws, Trump’s candidacy (combined with Brexit) smashed standard Reagan/Bush Republican orthodoxy in several areas. Republicans were traditionally a party of big business and free trade with a dollop of social conservatism on top. Trump declared free trade a failure and insisted on restoring American industrial strength in key strategic sectors. Likewise, he forcefully rejected the neoconservative foreign policy that George W. Bush had set in place (following Clinton before him).
The first effort to reframe intellectual debate on the right was American Affairs, the quarterly launched by Julius Krein and myself in 2017. The purpose of American Affairs has been to reorient U.S. political debate around essential themes of political and economic sovereignty, and to encourage a political ideology that prioritizes the same themes. Hence we have argued that the American Right must define a role for the state and aspire to govern—since most “right-wing” institutions have promoted a libertarian approach that neglects rule.
This approach has led to prioritizing family policy and industrial policy as essential tools for a future governing Right. The older, “right-liberal” American conservatives were anti-abortion but offered no financial support or assistance to families other than tax cuts. Similarly, they would argue for lower taxes and a lower regulatory and administrative burden on companies, but scrupulously avoided state intervention to preserve strategic sectors.
Critiques of modern liberalism as well as American conservatism had been brewing even before the political changes of 2016, however. Among the most notable have been Alasdair MacIntyre, who emphasized a recovery of Aristotelian virtue, and Leo Strauss. Beginning in the 1980s, Michael Sandel challenged John Rawls’s liberal political theory, emphasized, instead, unchosen obligations and “communitarian” limitations on the free market. The UK also developed its own critiques of liberalism from the Anglican theologian John Milbank, the philosopher John Gray, Lord Maurice Glasman (who founded Blue Labour) and Adrian Pabst. British postliberalism tends to be a left-wing phenomenon, couching its goals in the terms of Christian socialism. Within Catholic political philosophy, Pierre Manent has been an important point of contact between French and American thinkers, but has remained a friendly critic of liberalism in the tradition of Tocqueville. Today’s right-wing postliberals have fruitful connections and exchanges with each of these, but they take a more robustly political approach, are open to political strategies and are skeptical of liberalism’s permanence, and heavily accent classic Catholic goals.
Today’s right-wing postliberals take a robustly political approach, are open to political strategies and are skeptical of liberalism’s permanence, and heavily accent classic Catholic goals.
The new Catholic approach began to take shape about ten years ago. In a 2014 article for the American Conservative called “A Catholic Showdown Worth Watching,” Patrick Deneen described the mainstream view among political Catholics in the United States—those around First Things magazine and D.C. think tanks. According to that right-liberal view, liberal democracy and the American founding are basically good but became adulterated over time, and so adding Catholic moral commitments will help to shore up American democracy. Deneen and the rising group of more radical Catholics rejected this view, culminating in Deneen’s landmark 2018 book Why Liberalism Failed.
For most postliberals, liberalism is the political system based on radically new assumptions about human nature and politics that make continual liberation from unchosen norms into a social and political imperative. Liberalism, in the postliberal view, has an inherent instability due to this radical core. Now that the system no longer inspires loyalty in ordinary citizens and is incapable of delivering on its core promises of security and prosperity, postliberals seek to return to earlier traditions that emphasize the common good, and using politics to affirmatively protect, defend and shape society toward the good.
A parallel discourse emerged over the same years with the work of Pater Edmund Waldstein, an American-born Cistercian monk in Austria, whose website The Josias sought to revivify Catholic political theology. Waldstein recast integralism (a term which had not been widespread in English) as a rejection of liberalism and affirmation that the temporal order must always be subordinate to spiritual concerns. Influential writers in this vein include Waldstein as well as C. C. Pecknold, a theologian from the Catholic University of America.
Over the last five years, these varied strands—theology, political theory, political economy and law—have come together and crystallized into a number of projects. From his post at Harvard Law School, Adrian Vermeule has sought to bring into American law the traditions of Roman law, with its orientation toward the common good. A small but influential legal movement has sprouted up around the blog Ius et Iustitium and Vermeule’s much-discussed book Common Good Constitutionalism.
Last year also saw the birth of two new related publications. Sohrab Ahmari and Matthew Schmitz cofounded Compact magazine to challenge conservative orthodoxy on political economy, promoting a vision of politics more akin to Rerum novarum than Republican think tanks. And, along with Professors Deneen, Pecknold and Vermeule, I cofounded Postliberal Order, a Substack devoted to analyzing the decline of the liberal order and returning to our classical, Catholic and European inheritance to restore good politics.
Attention has also now turned to the example set by Hungary’s government under Viktor Orbán, which seems to have stopped the liberal tide and begun to build a conservative country. Though Orbán has been in power since 2010, in the last few years it has become clearer that the Hungarian direction is not merely a fluke but a successful experiment. From the American viewpoint, the European Right is more comfortable with the state and the use of power to achieve conservative goals. The Hungarian family policy pioneered by Katalin Novák exemplifies this trend, as does Hungary’s skepticism about the limitless expansion of Western liberal influence.
Attention has also now turned to the example set by Hungary’s government under Viktor Orbán, which seems to have stopped the liberal tide and begun to build a conservative country. Though Orbán has been in power since 2010, in the last few years it has become clearer that the Hungarian direction is not merely a fluke but a successful experiment
Intellectually inclined young Catholics are now much more interested in the reactionary Catholic traditions of France, as well as European right-wing politicians. They prefer Joseph de Maistre and Louis de Bonald over Edmund Burke and Adam Smith; they prefer reverent liturgy, including (but not exclusively) the traditional Latin Mass. While legitimism naturally does not play a role in American politics, young Catholic intellectuals are much likelier to flirt with monarchism than twenty years ago. With liberal democracy failing and alternatives needed, who is to say a king wouldn’t be a necessary reformer? Catholic university students inclined toward this perspective come to the Pro Civitate Dei summer school that I co-organize near Toulon each June.
Although the public policy inclinations of postliberalism sometimes overlap with populism, postliberal Catholic theory is not a populist movement. Adrian Vermeule is fond of saying that effective political change can be done “top down and inside out”—that is, with a strong leader as well as effective administrators. Integralists are also fond of Joseph de Maistre’s dictum in Considérations sur la France, “Quatre ou cinq personnes, peut-être, donneront un Roi à la France.” For decades, American conservatives have neglected to develop an intellectual elite that desires to rule. The result is that the American Right is dominated by media figures who turn potentially transformative political movements into loud but politically benign cultural tropes. Accordingly, postliberals emphasize the need to educate future participants in politics.
From an intellectual standpoint, the postliberal and integralist Right has made great strides in the last few years. The criticisms a few of us entertained privately years ago are now the ascendant note among young intellectuals. Above all, this shift reflects a growing sense globally that the post–Cold War expectations around a permanent liberal order were mistaken. It was traditionalists and reactionaries who accurately sensed that the new order was unsustainable, and that human nature would have its revenge.
It was traditionalists and reactionaries who accurately sensed that the new order was unsustainable, and that human nature would have its revenge
The institutions around postliberalism are still being built, while right-liberal organizations have begun to try to erect a cordon sanitaire around these insurgent efforts from the right. Lavishly endowed, tax-exempt organizations such as the American Enterprise Institute and the Heritage Foundation exercise a stranglehold on the American Right. But the need to return to the sources of European strength are obvious—hence the strong interest in Catholic tradition, Roman law and a vision of right-wing government oriented toward the common good. For decades, because of their strong intellectual traditions and skill at politics and law, Catholics have played an outsize role in American political life. The shifts among politically inclined Catholics in a more robust right-wing direction are already being felt in the halls of power. God willing, it will bear fruit—and stronger links between American and French conservatives will be a part of it.
Deneen: “We Are Witnessing the Beginning of the End of the Liberal Order”
Professor of political science at the University of Notre Dame, Patrick Deneen wrote a successful book in 2018, translated into more than twelve languages, to demonstrate and explain the failure of the liberal enterprise. Since then, he has become the architect and advocate of a postliberal order that will have the task of revitalizing the sense of community and concern for the good.
He is interviewed by Rémi Carlu.
L’incorrect. “There is no liberal politics sui generis, there is only a liberal critique of politics,” said Carl Schmitt. On the contrary, you say that liberalism is an ideology, and even the ultimate ideology. How would you define it? How did the liberal conception of freedom reverse the classical conception of freedom?
The classical definition of freedom (in the Latin, libertas) was the condition of self-rule, achieved through the cultivation of classical and (later) Christian virtues and discipline. It was not “doing as one wished,” but rather required the cultivation of the kind of character by which both individuals and citizens more broadly do what is right and good. This required a political, social, economic and religious order that assisted humans in the self-discipline necessary to achieve this hard-won condition of self-rule, including the taming of our instincts, desires, and passions.
Thus, in the classical and Christian tradition, the inability or unwillingness to discipline these lower elements of our nature resulted in a condition of slavery. So, both Plato and St. Paul could talk about the person who submitted to vice or sin as one who is “enslaved,” while those who master those base features of our nature as achieving a genuine kind of freedom.
Of course, the modern definition of “liberty,” arising from liberal theory and, later, liberal practice, reverses these definitions. Freedom is defined both by Hobbes and by Locke (in their “state of nature” scenario) as the condition of being to do as one wishes, to “dispose of one’s property and one’s self” as one likes. Liberty comes to be defined as the absence of external and internal constraint. Because this form of liberty is destructive, it must be restrained at some level by law; but because this form of liberty is according to our nature, it must be enjoyed and expanded to the greatest extent possible. Liberal polities come into existence explicitly to expand the empire of this modern liberty.
“Liberalism failed because it succeeded,” you say. How, because of its intrinsic logic, did it betray its initial promises?
Notice that the conditions that are required for the achievement of classical and Christian liberty are the conditions that prevent the achievement of modern, liberal liberty. In the classical and Christian tradition, all of the institutions of society—from the family, to education, to religion, to the law—are oriented toward the cultivation of those virtues that bring about the condition of true liberty, that is, of self-government. They must teach us, both individually and collectively, a kind of self-discipline.
For the liberal, these institutions (at least as constituted along classical and Christian lines) represent obstacles to the our achievement of liberty, now understood as the absence of external constraint. They must either be altered—aligned to the modern definition of liberty—or abolished. This helps us see why, today, family and the remnants of religion are now under concentrated assault, as the last remnants of the classical and Christian tradition’s understanding of liberty.
The conditions that are required for the achievement of classical and Christian liberty are the conditions that prevent the achievement of modern, liberal liberty
Liberalism thus both deconstructs the old, but also reconstructs a new set of institutions that allow us to realize ever more expansive forms of liberty as the absence of constraint. But notice two things result. First, the power of the liberal state, as well as increasingly liberal institutions (such as the economic order and institutions) must be directed against the remaining non-liberal institutions. Both public and private power become authoritarian toward remnant pre-liberal forms such as family and Church. Secondly, at the same time, we increasingly enter a human reality for which the liberty of the “state of nature” is the ideal, and the resulting social, political, and economic order begins to resemble this condition. We are all therefore engaged in a zero-sum, hypercompetitive, almost lawless condition of radicalized liberty in which individuated and monistic selves, stripped of any constitutive relationships, now seek to gain advantage over other nakedly exposed selves.
Beyond their formal opposition, progressivism and conservatism have collaborated to further liberalism, via the individualism-statism pair. What does that mean?
The modern configuration of liberalism has brilliantly developed to advance in both the economic and social spheres by appearing to offer two opposite alternatives (at least in the American context, which, of course, influences the whole world). “Right” liberals claim to represent “family values” while advancing a libertarian economy that unsettles and undermines families and communities everywhere it predominates. “Left” liberals claim to represent economic solidarity while advancing a social program of radically liberated, self-defining selves that attacks the very foundations of human solidarity—family, community, culture, religion. They appear to be opponents, but, in fact, work seamlessly together to advance liberalism as a pincer movement.
Liberalism is an “elitist” political philosophy—advancing the material and social interests of a select set of individuals who flourish under the conditions I’ve described. Yet, it has “sold” itself as an egalitarian philosophy
How has democracy been exploited by the liberal elites, to confine it and make it its stepping stone?
Liberalism is an “elitist” political philosophy—advancing the material and social interests of a select set of individuals who flourish under the conditions I’ve described. Yet, it has “sold” itself as an egalitarian philosophy, claiming that it comes about through “consent” and that its legitimacy rests on “democracy.” Liberalism was able to gain traction on this front by posing itself as a new egalitarianism that opposed the arbitrary rule of the old aristocracy. It created a “black legend” of backward and unjust times, and posed a vision of a just and better world. In reality, it replaced that old aristocracy with a new, arbitrary liberal elite whose status and position—it claimed—was “earned,” but which today is largely perpetuated through exactly the same means as the old aristocracy—i.e., one’s family ties. Yet, because of the claim that the positions of the elites were “earned,” it abandoned any of the older aspirations to “noblesse oblige,” and instead liberal elites came to regard their status as merited and that of those who fell short as deserved.
Today we see the “demos”—citizenries around the world in liberal political orders—rising up electorally against their new masters. Notice that the “elites” denounce such democratic outcomes as contrary to democracy. They use the label “populist” in order to differentiate democratic outcomes of which they approve (i.e., liberal) from democratic outcomes they deplore (non-liberal). Thus we enter a strange world in which elections of such policies and people as Brexit and Georgia Meloni are represented by today’s elites as a “threat to democracy.”
Under the cover of liberation, liberalism has therefore been a formidable operation of destruction—family, culture, liberal arts, nature—but engendered an unprecedented loss of freedom. A question therefore arises: how have we accepted it for such a long time, and even still believe in it?
The period in which liberalism was an order—that is, the “default” regime within which various parties were defined and contested—is actually quite short. It covers the period roughly from the end of the second World War until today—and, possibly, even shorter, if we consider that for much of that time, Communism and Christian democracy were serious contenders. Liberalism’s ascendancy may actually date roughly from 1989 (fall of the Berlin Wall) until 2016 (Brexit and the election of Donald Trump). That’s a very short reign, indeed, and required some very specific background conditions that very quickly ceased to apply. Liberalism became ascendant in the wake of an especially devastating war and a single hegemon (the United States). Because of that brief period of unipolar ascendancy, a greater share of the American population enjoyed the fruits of victory, and attributed their momentary largesse to a system rather than circumstance. That mirage came to an end rather quickly, however, already teetering in the 1970s and ending completely in the first decade of the twenty-first century.
The period in which liberalism was an order—that is, the “default” regime within which various parties were defined and contested—is actually quite short
As these unsustainable conditions continue, increasingly enforced by a more nakedly oppressive elite, I think we are seeing the beginnings of the end of the liberal order. This is not to say that it will go away, but that liberals are becoming a discernible party rather than an order. Having represented themselves for a time as the only “natural” or “true” regime, its outcomes and ruling class are increasingly exposed as nothing more than a set of partisan interests. There is a question whether it can maintain itself as an electorally successful regime, or will have to resort to extra-electoral mechanisms to retain power.
In a book to be published in June, you advocate a regime change. What does postliberal order mean? What would it look like? What do you make of populism?
My book argues (as I’ve done here) that liberalism is an unjust political order, in particular because it seeks to sideline the “party of the people” from its ruling considerations. This is true of both “Right” (or, “liberal”) and “Left” (or, “progressive”) liberalism. There are two alternatives that seek the genuine, regime-level representation of “the people”—Marxism and common good conservatism. I reject Marxism for falsely representing the “people’s party,” on the grounds that the “populace” is generally not a revolutionary, but a conservative party. I propose a regime change in which we seek not the elimination of an elite party per se, but the replacement of current liberal elites with a new elite defined by a close alignment with the conservative party of the people.
Intellectually and politically, in the United States and internationally, do you see a movement emerging and working towards this direction?
By its nature, conservatism tends to be more culturally, nationally and historically particular, and thus, has not advanced as an international or global project in the same manner as both Marxism and liberalism. However, as liberalism has become a global order, it has required a more conscious effort to forge a global response. As a result, we are seeing the outlines of a new, more international conservatism that finds those areas to make common cause against a common enemy.
There is a question that you do not address directly in your previous book: religious secularization. Will not the return to classical freedom and the advent of a counterculture/anti-culture necessarily require a rediscovered faith?
In my last book, I broadly include religion under the category of “culture,” and—yes—argue that our “anti-culture” will require the cultivation of a genuine, deepened culture as an alternative. Necessarily, this centrally concerns and requires religion.
In my next book, I more explicitly call for the “integration” of religion and politics, and, specifically in the context of Western nations, a reinvigoration of Christianity and Christian culture that remains a somewhat dormant, but vital part of our own cultural inheritance and tradition. This revitalization should be a central focus and concern of the new leadership class that will be required to achieve “regime change.”
Vermeule: “Rights Must Be Ordered toward the Common Good”
How to interpret the Constitution? In the United States, the legal debate opposes the “progressive” Left, which wants to interpret the texts with today’s glasses to advance its agenda, with the “originalist” Right, which proposes to attach itself to the original intent of the founders. A professor of constitutional law at Harvard, Adrian Vermeule intends to go beyond this false alternative to return to the classic tradition of law, which he calls “common good constitutionalism.”
Interview by Rémi Carlu for L’incorrect.
L’incorrect. The American constitutional debate oscillates between the conservatives’ originalism and the liberals’ progressivism. What are those two positions, and why are they wrong?
In my view, both “conservative” American originalism and left-liberal progressivism are aspects or variant cases of liberal legal theory; American “conservatives” are just liberals of the Right, focusing more on economic freedom from public regulation, while the liberals of the Left focus on sexual freedom and issues of identity. As far as legal theory goes, both the “originalism” of the American Right and the progressivism of the American Left share a common fundamental assumption of legal positivism, namely that all law is created by human will. They locate the relevant will differently—for the originalist, it is the will of the framers and ratifiers of the Constitution, whereas for the progressive, it is the ongoing and ever-changing will of the forces of “democratic” progress—but both deny the existence of any objective order of intrinsically reasoned law, such as the natural law, existing apart from human will. Ironically, this modern positivist conception is not at all the conception of law held by Americans of the eighteenth century, who very much believed in an objective rational order of law. Hence the “originalists” refute themselves unintentionally; the original conception of law was the opposite of the one they hold.
By contrast to both approaches, I aim to recover the connections between the American constitutional order and the European and classical conception of law, which sees law as an objective rational order, consisting both of posited civil law (lex) and of background principles of legal justice (ius), which civil law specifies and implements. Those principles are called upon to interpret and harmonize the positive civil law with traditional principles of legal justice and right social order. I hold, with the classical European lawyers and American lawyers, that law is not only will, but also reason; it is will informed by reason and directed to the rational end of the good of the political community.
Returning to the classical tradition of law, you propose in response a “common good constitutionalism.” What do you mean by that? Can you give us a concrete example?
Well, the whole book explains what it means. Briefly, the classical conception of law holds that law properly so-called is a reasoned ordinance directed to the benefit of the whole political community, the communis utilitas. The classical law specifies the common good at ever more specific levels, from the famous trio of pax, iustitia et copia (peace, justice and abundance) down to specific legal rules promoting civil order, fair procedures for legal justice, the formation of contracts and the prevention of wrongs (delicts), and sound principles of basic economic justice. It does so by drawing upon background principles of the ius naturale and ius gentium (natural law and law of nations) and traditional principles of legal justice, both substantive and procedural, such as the principle that no one may be convicted without a hearing, or that no one may profit from his own wrongdoing. The classical law recognizes rights, but holds that rights themselves are ordered to the common good of the community, rather than being founded in individual autonomy.
The classical law recognizes rights, but holds that rights themselves are ordered to the common good of the community, rather than being founded in individual autonomy
Hence, let me recount merely one concrete example out of those give in the book: the United States Supreme Court held (roughly speaking) that there is a constitutional right to possess “virtual” child pornography, that is, child pornography created by animation, for example. The Court reasoned that there is no harm to any actual children when such materials are created. This is a deeply impoverished view that sees “harm” as the only constraint on individual autonomy, ignoring the broader harms to the sound moral fabric of the political community from the creation, consumption and availability of virtual child pornography.
Isn’t there a risk of giving great powers to the judges, as jurisprudence will be less bounded by law?
With respect, there are two mistaken assumptions built into the question here. First, an orientation to the common good is itself part of law, not something separate from or outside law. This is true most obviously when the text of the law or code itself refers to “the public interest” or “public order” or some such phrase; then the text must be interpreted one way or another, and there is no escape from forming some conception or other of what the public interest requires. More fundamentally, however, on the classical view, an orientation to the common good is part of the very nature of law, properly understood. Law is more than will; it is also reason, rational ordering to the good of the whole political community.
The second mistaken assumption is that the classical legal approach gives more power to judges. As the book explains, however, this is not true, both because the classical law itself builds in a margin of appreciation for the rational determinations or specifications of background principles of law on the part of public authorities, and because the classical law binds judges to objective and traditional principles of the natural law where positive texts are general, unclear or ambiguous, rather than leaving them free to exercise unstructured and willful discretion.
Basically, it is the status of the law (lex) that you are questioning, by reincorporating it into a much broader legal framework (ius). Is it not the French legicentrist tradition, born during the Revolution, that you incriminate?
No, not at all. This is a shibboleth of the positivists, who want to reduce all law to lex, and thus try to claim that anything that is not lex is not “law.” On the classical view, however, ius naturale (natural law), ius gentium (the law of nations), and so forth help us to interpret the civil law or code (ius civile), especially when the text is ambiguous, silent or seemingly contradictory. The aim of the classical lawyer is thus to harmonize the written text of the law with these background principles of legal justice, which are themselves part of “the law.” This is why in the great era of codification in Europe, one referred to “natural law codes”—in other words, the codes themselves incorporated standards and principles of the natural law. And it is why Portalis, in his great Discours préliminaire au projet de code civil, expressly incorporated natural reason and natural law into the Code Civil, observing that “[e]quity is the return to natural law when positive laws are silent, contradictory or vague.“
You rehabilitate the close relationship between the legal order and morality. Why is this inevitable? Does this not, however, require a political consensus on the definition of the good, a consensus which no longer exists today in the liberal era?
The supposed lack of political consensus on the common good is a red herring, a talking point of liberalism. First, when society is affluent, stable and well-functioning, skepticism about the common good is a viable luxury for the intellectual classes, but that skepticism becomes less attractive when there are widespread and growing social and economic problems. Then it becomes clear that some polities do better than others at providing for the public welfare of the whole political community. Hence we see repeated revivals of the classical legal theory over time, especially in the wake of social and political breakdown, as immediately after the Second World War. Second, there is no consensus either on the highly abstract and hotly contested concepts that legal liberalism would posit instead as the touchstones of the legal order, such as “liberty” and “equality.” Liberal jurists do not worry about the lack of consensus on such concepts; they have no problem imposing their vision of what these concepts require. Third, law is a teacher, and the work of the jurists and the statements of the law itself help to educate the citizen about what the common good entails and requires. Law itself helps to forge consensus on the common good.
When society is affluent, stable and well-functioning, skepticism about the common good is a viable luxury for the intellectual classes, but that skepticism becomes less attractive when there are widespread and growing social and economic problems
What is your take on populism, thought of in Europe as a democratic response to the “government of judges” and the “rule of law”? Can populism and “common good constitutionalism” go hand in hand, or are they contradictory?
I am not a populist, if by that one means a blind faith that the unstructured judgments of the people at large, unmediated by law, are superior to the judgments of properly constituted public authorities. (I note that the classical tradition emphatically rejects populism in this sense; as the great Italian lawyer Baldus put it, “the greater the number, the less the understanding.”) However, popular sovereignty is itself the proximate basis of public authority, by delegation. This was true even for the Roman emperors, who according to the official theory of the classical law held their legal authority and power (imperium and potestas) in virtue of delegation under a lex, a law, from the Roman people. So popular sovereignty and law are not necessarily opposed to one another. In the European case today, speaking as an outsider, it seems to me that “populism” is best understood as a flawed but understandable defensive reaction to governing institutions and legal institutions that relentlessly prosecute a very particular liberal agenda, one that aims at a restless ongoing liberation of the human being from all the unchosen constraints of traditional law, morality, and social solidarity. In that sense, European populism, although not the first-best ideal of governance by properly constituted authorities for the common good, is a comprehensible second-best reaction to unfortunate circumstances.
Do you relate intellectually to any particular school of legal philosophy? What is the place in your thinking for authors like Aristotle or Saint Thomas? What about the work of Michel Villey, that some parts of your book about the classical conception of law reminded me of?
Yes, certainly I am an enormous admirer of Villey, and of course Aristotle and the Angelic Doctor, St. Thomas, are central to the classical legal tradition. However, as I have written both in the book and elsewhere, I emphasize that the common good is as much a legal and juristic concept as a philosophic and theological concept. That is, I am influenced even more heavily by the practical and juristic side of the classical tradition, the great civilian lawyers, than by the philosophical and theological side of the tradition. The common good is built into the text and principles of the law, into the fabric of the law itself, whether as public order, public interest, general welfare, or similar concepts. The working lawyer does not have the philosopher’s luxury of suspending judgment, declaring everything very difficult, or reposing in intellectual agnosticism about what the common good means.
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