For the Balkinization symposium on Adrian Vermeule, Common Good Constitutionalism (Polity Press 2022).
Daniel Bell
Professor Vermuele is clear that his intended audience “is neither the student of first-order policy questions, nor the professional student of jurisprudence.” Rather, his audience “is the intelligent observer of the law, whether or not a lawyer, who intuits that something has gone very wrong with our law and our legal academy, but isn’t sure exactly how or why” (p. 25). I’m a direct fit: I’m neither a policy analyst nor a lawyer but I’m genuinely puzzled by debates in American jurisprudence. In 1994-95, I was a research fellow at Princeton University’s Center for Human Values and witnessed the now famous exchange between Ronald Dworkin and Justice Antonin Scalia on constitutional interpretation. At the time, I thought both “sides” has serious problems. Justice Scalia argued that Supreme Court judges need to stick to the original meaning of the constitution, but I was persuaded by Dworkin’s response that they could not avoid invoking some moral principles from “outside.” On the other hand, I was also persuaded by Judge Scalia’s critique that Dworkin’s own constitutional interpretation is deeply worrisome because he always seems to conclude with the value judgments of the modern-day liberal left that stray far beyond the original meaning of the constitution and seem to give too much discretionary power to judges. Vermuele’s book has cleared away my confusion. Dworkin method of interpretation is largely correct – the judge should be open about the need for “moral readings of the constitution”, implemented through the method of fit and justification. But the principles of political morality that inform constitutional interpretation in the American context should be rooted in the (Roman and European) classical legal tradition of “common good constitutionalism” that not only influenced the founding fathers but can and should continue to be influential today. With this political morality in mind, application of the law may not always lead to results that favor one “side” in today’s constitutional debates. Sometimes, they will lead to results favorable to the political left (especially regarding economic and environmental justice), and sometimes to the political right (especially on cultural issues regarding the family and sexuality). I’m not entirely persuaded by the applications (especially regarding same-sex marriage)[1] but I’m almost entirely persuaded by Vermuele’s method of constitutional interpretation for an American context.[2]
But I want to comment on something different: the possibility of extending “common good constitutionalism” to the Chinese context. The challenges are obvious. The term itself, if directly translated as 共同善宪法主义, sounds strange if not foreign. China’s legal system was influenced by Germany’s legal system (via Japan) but the classical European legal tradition and ideas of the common good do not, to my knowledge, have much influence on past and present constitutional interpretation in China.[3] Not to mention that the Christian morality Vermuele occasionally invokes has negligible impact on China’s public culture. China’s own legal tradition known as Legalism (法家) strongly promotes aggressive warfare and emphasizes the need to enhance state power by means of harsh punishments that generate fear and obedience in the people, values that seems directly at odds with the (European-style) common good’s “famous trinity, peace, justice, and abundance” (p. 7).
Still, I want to suggest that
China’s legal community has a lot to learn from Vermuele’s book (and I hope
it’s translated and published in China).[4]
Confucianism is the dominant political morality in China and it continues to
shape its legal system.[5]
The Confucian tradition has a lot in common with “the general principles of [European-style]
common good constitutionalism” (p.5) and let me note some of them here. As a
method, Confucians would wholeheartedly endorse Vermuele’s claim that “the best
way forward is to look backward for inspiration” (p. 183), though Confucians
would look to the (idealized?) Zhou dynasty rather than the Roman legal
tradition and Christian morality. Confucianism, similar to common good
constitutionalism, “does not suffer from a horror of legitimate hierarchy” (p.
38) and would endorse hierarchies the promote the well-being of those on the
bottom of social hierarchies.[6] In terms of substance, Confucians would
endorse Vermuele’s claim that “law flourishes as law when it
incorporates, not liberationism whether of the economic or sexual varieties,
but genuine concern for the common good at higher levels – individual, family,
city, nation, and commonwealth of nations” (p. 23): the passage in the Great
Leaning (大学) that through self-cultivation
one can widen one’s heart and bring order and harmony to the family, the
country, and the world as whole is one of the most famous and frequently cited
passages in the Confucian corpus.[7]
Confucians strongly emphasize that policy priority should be given to the most vulnerable
members of the community such as needy individuals who cannot rely on family
support for help (鳏寡孤独).[8]
Hence, they would agree that “constitutional law will define in broad terms the
authority of the state to protect the public’s health and well-being,
protecting the weak from pandemics, and scourges of many kinds – biological ,
social, and economic – even when doing so requires overriding the selfish
claims of individuals to private “rights” conceived as trumps protecting a zone
of autonomy, rather than ordered to the common good” (p. 43). Finally,
Confucians, for whom serving the political community is the highest good in the
temporal world (Confucians are agnostic about the transcendental world), would
endorse the common good idea that a flourishing political community is “the
highest good for individuals as such” (p. 14). In short, there is much overlap
between the political morality of European-style “common good
constitutionalism” and the political morality of Confucianism. Vermuele is
explicit that electoral democracy is only one possible way of
institutionalizing “common good constitutionalism” (pp. 47-8) and might be open
to the possibility that Chinese-style political meritocracy (贤能政治) can serve as a guiding ideal
for “common good constitutionalism” in China. Confucians would agree that
“bureaucracy will be seen not as an enemy, but as the strong hand of legitimate
rule” (p.42), adding that all public officials should be promoted on the basis
of ability and commitment to “serve the people.” Still, it should be recognized
that the implications of Confucian political morality for jurisprudence are not
always so clear. Confucian-inspired lawyers and judges can look to the more
well-developed European classical legal tradition for systematic legal reasoning
and ideas for limiting state power that infringes upon the common good.
But the learning can go both ways. China’s
political traditions can enrich “common good constitutionalism” in ways that
may be appropriate for China and the rest of the world. For one thing,
Confucians would endorse Vermuele’s argument that “morality is obviously a
sound and, indeed, an unavoidable basis for public lawmaking” (p. 68), though
they would add that it’s more effective to promote moral behavior by such
informal means of rituals (礼)
that generate a sense of community and care among participants, with legal
means as a last resort.[9]
So Confucians would want to avoid the proliferation of laws and regulations
that inform excessively litigious societies such as the United States. Second,
what we may call “common good Confucianism” would include “diversity in harmony”
as a central value. The Confucian idea of harmony famously tolerates if not
celebrates pluralism – one of the most famous sayings in the Analects of
Confucius is that exemplary persons value “diversity in harmony” whereas
petty people value sameness/uniformity/conformity. Vermuele seems to adapt
“common good” theorizing to “contemporary conditions of extreme economic and
social complexity” (p. 135), but it is also important to adapt theorizing to
contemporary conditions of extreme pluralism (or what Rawls famously termed
“the fact of pluralism) and here the value of “diversity in harmony” may be
particularly relevant.[10]
Finally, Confucianism can explain why the good of “abundance” should be so
important.[11] Confucius
said that the government should first “enrich” (富)
the people and then educate (教)
them[12]
and his most influential interpreter Mencius explained why: a few sages (or
saints) can be moral even in conditions of extreme poverty, but most people can
only extend love and care beyond the family if they have basic material
well-being and they’re not worried about getting their next meal.[13]
Let me add that Marxists put forward another reason to value abundance: people
can only be freed from drudge labor and able to exercise their creative talents
if they live in a society where advanced machinery does most of the necessary
labor.[14]
I share Vermuele’s worry about an extreme “liberationist” agenda that undermines
valued social ties, but hopefully he’d agree that a relatively wealthy society
where people are freed from the need to engage in dirty, dangerous,
mind-dulling and low-paying work would constitute an advance regarding what we
might term the “level of civilization.”[15]
Daniel A. Bell is Dean of the School of Political Science and Public Administration at Shandong University (Qingdao) and Chair Professor at Fudan University’s Institute for Advanced Study in Social Sciences (Shanghai). Email: daniel.a.bell@gmail.com.
[1]
Vermuele
suggests that the choice is between endorsing the traditional idea of marriage
as a union between a man and a woman for the purpose of procreation and “an
attempt to break a traditional and natural legal institution by sheer force of
will in the service of a liberationist agenda” (p. 133). But relatively
conservative defenders of same-sex marriage (and of marriage between men and
women who choose not to have children) do not argue for the practice “in the
service of a liberationist agenda.” Rather, they argue for marriage on the
grounds that it promotes traditional virtues such as mutual trust, loyalty, and
responsibility (in addition to intimate love) and that extending marriage to
same-sex couples can reinforce, rather than break with, traditional understandings
of marriage (see, e.g. Stephen Macedo, Just Married: Same-Sex Couples,
Monogamy, and the Future of Marriage (Princeton University Press,
2015). If Vermuele can extend (without
much argument) the ends of “peace, justice, and abundance” to mean “health,
safety, and economic security” (p.7) and “a right relationship to the natural
environment” (pp. 36, 134) in a modern contexts in ways that may not have been
recognizable (or even acceptable) to, say, ancient Roman jurists, then it’s not
implausible to suggest that modern day defenders of marriage can extrapolate
from some of the traditional virtues expressed in marriage to justify marriage
between same-sex couples in ways that may not have been recognizable (or even
acceptable) to traditional defenders of marriage.
[2] I confess I’m still a bit puzzled by the idea
that “a genuinely common good is a good that is unitary (“one in
number”) and capable of being shared without being diminished” (p. 28).
Vermuele says it’s similar to a football team that aims “for victory, a unitary
aim for all that requires the cooperation of all and that is not diminished by
being shared” but the victory of one football team is predicated on the loss of
another team and it’s unclear who loses when people strive for a common good
nor how it can be unitary if there are also “losers.”I’m also bit puzzled by
the idea that “the common good is unitary and indivisible, not an aggregation
of individual utilities”(p.7). Let’s imagine a political community where
everyone agrees expresses their “utilities” and settle on the conclusion that the
common good should be X. How can the
common good not incorporate X is this context? Perhaps there’s some sort of
common good floating, Geist-like, above what real people think and value,
but that can’t be the whole story. At least some of people’s preferences in
contemporary society should matter when it comes to interpreting the common
good.
[3] Again, I’m not
an expert. I do not want to rule out the possibility that experts in Chinese
law can find substantial influence of European-style “common good
constitutionalism” in Chinese legal history and present-day constitutional
interpretation in China.
[4] Political
censorship has worsened of late in China, but (as things stand) I don’t think
Vermuele’s book has any politically sensitive material that would be cut in
Chinese translation.
[5] See, e.g., Confucianism
for the Modern World, eds. Daniel A. Bell and Hahm Chaibong, Cambridge:
Cambridge University Press, 2003), chapters 11 and 12.
[6] See Daniel A.
Bell and Wang Pei, Just Hierarchy: Why Social Hierarchies Matter in China
and the Rest of the World (Princeton University Press, 2020).
[8] See https://tinyurl.com/bdhffmyp
[9] Confucius
famously said ““道之以政，齐之以刑，民免而无耻。道之以德，齐之以礼，有耻且格。” and the relation between “ritual” and
“law” was elaborated in systematic detail by Xunzi.
[10] For an argument
that “diversity in harmony” is the central value in the Confucian
tradition, see Chenyang Li, The Confucian Philosophy of Harmony (London:
Routledge, 2015).
[11] There may be an
argument in the European“classical legal tradition” but I couldn’t find it in
Vermuele’s book.
[14] See G. A.
Cohen, Karl Marx’s Theory of History: A Defense (Princeton: Princeton
University Press, 2001).
[15]
Vermuele suggests that freedom should be valued if and only if it serves as a
means to promote the common good (including abundance) (pp. 37-38). But
Marxists say that abundance is a means to freedom from unwanted labor (which is
a necessary condition for the realization of one’s creative talents). I side
with Marxists here.