Friday, May 13, 2022

A Memory in the Making: Our Classical Legal Tradition

Brian Tamanaha

 Jack’s important essay, Constitutional Memories, identifies memory entrepreneurs: people and institutions who uncover old history and publicize it as a way to change collective memories of the past.  These narratives involve selective remembering and forgetting, shaped to fit a particular framework.  The most effective narratives, those that resonate, draw on themes, ideas, and events that run through our law and history, weaving them together in a way that appears plausible, at least superficially.  These narratives often advance a political and ideological agenda (sometimes left implicit), which helps garner support for the narrative from those who share the agenda.  Narratives that successfully take hold become a part of background assumptions about law, and shape how law is understood and constructed.   


We are currently witnessing the birth of a new entrepreneurial memory, what Adrian Vermeule calls our “classical legal tradition.”  In Common Good Constitutionalism (2022), Vermeule advocates recovery of the natural law tradition that undergirded Western law for millennia and provided the basis for American law from before the founding of the country until it was unceremoniously discarded in the mid-twentieth century.  “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),” he declares.  “[C]ommon good constitutionalism holds that enduring, objective principles of just governance inform positive law, the law of nations, and natural law alike.  These principles do not themselves evolve, although their applications may develop, over time, in changing circumstances.” 


The departure of American law from these principles in the past two generations, Vermeule argues, “justifies ripping up substantial segments of the recent development of our law.”  “The best way forward is to look backward for inspiration.  A revival and adaptation of the classical law, translated into today’s circumstances, is the only way to restore the integrity of our law and of our legal tradition.”  A radical reversal of current law and resurrection of the past, he tells us, is necessary to make American law great again.


Lending plausibility to his account, Vermeule strings together old legal sources (Justinian Code, ius commune, common law), hallowed authorities (Cicero, Aquinas, Blackstone), and longstanding Latin legal terms (ius civile, ius gentium, ius naturale).  He presents these millennia old forebears as if they constitute a coherent, singular, and continuous set of ideas: “classical law reads the law of a particular jurisdiction (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.”   Needless to say, Vermeule says nothing about the bad things justified by natural law (ius gentium, common law, etc.) in the course of history, not least of which includes slavery and the subordination of women.


As with many entrepreneurial memories, an agenda lies behind the constructed narrative.  In “A Christian Strategy,” an essay he published in First Things, Vermeule reveals: “A Christian politics must always be strategic, viewing political commitments not as articles of sacred faith, but as tactical tools to be handled in whatever way best serves the cause of Christ.”  Vermeule admits to strategically emphasizing whatever aspect of his identity (American, WASP descendant of early settlers, lawyer, “member in good standing of the overwhelmingly liberal intelligentsia,” etc.) in given contexts that serves his ultimate purpose.  “The ultimate long-run goal is the same as it ever was: to bear witness to the Lord and to expand his one, holy, Catholic and apostolic Church to the ends of the earth.”  What this entails is “that ultimate allegiances to political parties, to the nation, even to the Constitution, may all have to go if conditions warrant it.”


Consistent with his self-professed strategic approach, Vermeule makes no mention of this agenda in Common Good Constitutionalism.  His adroit legal analyses of constitutional law and administrative law issues are articulated in terms of Supreme Court opinions, legislative acts, legal doctrines, ius commune, ius gentium, ius naturale, frequent references to the common good, and so forth, but not Catholic doctrine.  Only if readers keep in mind his project and dig into the sources he cites in endnotes does Vermeule’s ultimate objective come into view.  And in the endnotes, though not in the main text, he suggests that abortion (n. 103) and gay marriage (n. 346) are contrary to natural law and should be banned nationwide.


It bears noting that Vermeule’s idealization of our “classical legal tradition” unmistakably resonates with language in the leaked Dobbs draft striking Roe that accords significant constitutional weight to views “deeply rooted in the nation’s history and tradition.”


A critical examination of this constructed entrepreneurial memory, and of natural law history and theory more generally, is available on SSRN: Beware Illiberal Natural Law.



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