I liked this review even though it was completely different from my experience of reading it. So, I liked the book because I think the Common Good argument could be convincing to judges in a lot of different circumstances. I have enjoyed using it in my pidgin way in practice to good effect.
At the same time, if I think I can make a good textualist/originalist argument that will convince the judge, I'll use that too. This is I think how it's better to read him than as a political philosopher. He sometimes writes interesting things that I agree with in political philosophy, and other things that I disagree with, but that's OK with me.
Summing it up, I thought his argument about constitutional and statutory interpretation was excellent and of immediate practical utility. But as a work of political philosophy lauding the administrative state, I just wasn't terribly moved by it, perhaps due to cynicism, or perhaps because Hamburger's critique of the administrative state from an Anglo-American history-and-tradition perspective agrees with me better.
I would guess the book had less than 10 pages worth of content really devoted to the conclusion “the Western legal tradition is based on the idea of the common good,” but I grant that those pages made some positive case—e.g. through the Aquinas citation I mentioned.
That conclusion seems unremarkable to me and almost like a tautology, but you’re right to remind me that there are judges who do need to be reminded of it.
Had Vermeule wanted to help us do that, though, he could’ve done it much more effectively by having more citations to that effect—ideally more common law citations—and fewer citations to Renaissance Italians and 20th century continental political theorists about why all power must be gathered into the Führerstaat.
I’m curious how you managed to write this essay without referencing Hobbes (an absolute monarch hovering over a landscape?), whose Leviathan Vermeule references in the title of one of his books and whose word ‘tyrannophobia’ he resurrected…
That's a good point: Hobbes definitely fits into this same political orbit. The reason I didn't discuss him here is because Vermeule doesn't cite him in this book - at least not anywhere in the main text.
You could also say I'm giving Vermeule the benefit of the doubt by conceding that his "classical" views at least predate Hobbes and Bodin by at most ~200 years.
‘Catholic Hobbesian’ might be the best way of describing Vermeule, which also shows the contradiction of his thought, since Hobbes was (consistently with his entire philosophy) extremely anti-Catholic…
Yes! Reminds me of a sentence of Del Noce's: "atheism always goes together with forms of negation of freedom: with the harshest form of absolutism, in the libertines; with totalitarianism, in Marxism; and we can also think of Hobbes, whose atheism is a hypothesis that is certainly possible, and can be supported with good arguments, and who was in any case among the first to “conceive a politics with the clear intention of excluding from its principles the divine.”"
Hmmm, this confuses me since a huge part of the substance of Protestantism was related to opposition to the glorification of centralized civil State and (and their personifications, the monarchs) and their reassertions natural law and the contractual and limited nature of government.
An interesting essay, whose sixth and seventh paragraphs provide the most convincing critique of Vermeule I've encountered.
My own current position is that while there is no logical limit to the power a ruler ought to be able to wield in the pursuit of the good. But it is the good, not the power that is truly good, and power is only good in proportion to the virtue of the possessor. So I'm against the idea of utterly impermeable boundaries set against authority and between different powers, while I am for such division as a matter of prudence as the circumstances may dictate their necessity.
Could you cite chapter and verse on the quotation from Aristotle?
That depends on what you mean by utterly impermeable. No constitutional settlement can be permanent—and it can be necessary to have revolutionary transitions between one settlement and another—but any settlement ought to have separate powers, decentralization, and written prospective law. It should have these attributes because they are necessary to protect people from evil, and they should be firmly established within the constitutional settlement itself.
Your bio mentions that you live in rural New Hampshire, it could be argued that the centralization economic powers that occurred after the war, but even if focus just on the immense centralization that occurred between the latter 1970s and mid 1980s harmed many areas of New Hampshire, through no fault of their own, after losing power they personally held as communities for almost 200 years
To read the book outside the author’s express statement that his concern is primarily the interpretation of law seems to allow you to construct a political theorist from a constitutional lawyer. Political theory pertains, because of the ius discurva that is constitutional law; and no doubt he argues that authority must accompany the ability to do the common good. It is good to have the power of a giant and terrible to use such power. But the common good restrains the abuse of power. To leave the common good out of political deliberations renders the politician illegitimate.
Vermeule explicitly discusses political theory throughout the book. Judges should always uphold centralized power, for example, because the decentralization of power is bad. You can’t get around the fact that the premise there is a statement about political philosophy.
Often he doesn’t even bother with the framing of judicial interpretation, and simply attacks the idea of restraining the state’s power in general.
I agree with the statement, at least in its ordinary meaning, that the common good should be the foundation of jurisprudence. I disagree that the common good is advanced by having an absolute, centralized state unlimited by any separated or decentralized powers or by prospective written laws.
Constitutional legal interpretation does embed political theory by its very nature. But I think we should take authors at their word. Vermeule states very clearly his work in Common Good Constitutionalism is a work on legal interpretation. I have also never read him write that “decentralization of power is bad.” I don’t think it is in this book. I have read that authority needs to be appropriate to fulfill the common good. Of course if one reads him through a Hobbesian war of all against all, one will find him authoritarian. Social contract arises out of the contest of wills — and any will that receives authority will be “authoritarian.” But the common good tradition does not see humans as “born free but everywhere in chains.” It seems humans as basically social, and thinks it is possible to order things to the Good with reason, not merely through the exercise of the will. I doubt if I will persuade you, but the difference between liberalism of the right and the left and the common good tradition is deeper than “centralization of power is good.”
I liked this review even though it was completely different from my experience of reading it. So, I liked the book because I think the Common Good argument could be convincing to judges in a lot of different circumstances. I have enjoyed using it in my pidgin way in practice to good effect.
At the same time, if I think I can make a good textualist/originalist argument that will convince the judge, I'll use that too. This is I think how it's better to read him than as a political philosopher. He sometimes writes interesting things that I agree with in political philosophy, and other things that I disagree with, but that's OK with me.
Summing it up, I thought his argument about constitutional and statutory interpretation was excellent and of immediate practical utility. But as a work of political philosophy lauding the administrative state, I just wasn't terribly moved by it, perhaps due to cynicism, or perhaps because Hamburger's critique of the administrative state from an Anglo-American history-and-tradition perspective agrees with me better.
I would guess the book had less than 10 pages worth of content really devoted to the conclusion “the Western legal tradition is based on the idea of the common good,” but I grant that those pages made some positive case—e.g. through the Aquinas citation I mentioned.
That conclusion seems unremarkable to me and almost like a tautology, but you’re right to remind me that there are judges who do need to be reminded of it.
Had Vermeule wanted to help us do that, though, he could’ve done it much more effectively by having more citations to that effect—ideally more common law citations—and fewer citations to Renaissance Italians and 20th century continental political theorists about why all power must be gathered into the Führerstaat.
I’m curious how you managed to write this essay without referencing Hobbes (an absolute monarch hovering over a landscape?), whose Leviathan Vermeule references in the title of one of his books and whose word ‘tyrannophobia’ he resurrected…
That's a good point: Hobbes definitely fits into this same political orbit. The reason I didn't discuss him here is because Vermeule doesn't cite him in this book - at least not anywhere in the main text.
You could also say I'm giving Vermeule the benefit of the doubt by conceding that his "classical" views at least predate Hobbes and Bodin by at most ~200 years.
‘Catholic Hobbesian’ might be the best way of describing Vermeule, which also shows the contradiction of his thought, since Hobbes was (consistently with his entire philosophy) extremely anti-Catholic…
Right, every major historic thinker who supports an all-centralized absolutist state seems to be either completely secular or a Protestant.
Yes! Reminds me of a sentence of Del Noce's: "atheism always goes together with forms of negation of freedom: with the harshest form of absolutism, in the libertines; with totalitarianism, in Marxism; and we can also think of Hobbes, whose atheism is a hypothesis that is certainly possible, and can be supported with good arguments, and who was in any case among the first to “conceive a politics with the clear intention of excluding from its principles the divine.”"
Hmmm, this confuses me since a huge part of the substance of Protestantism was related to opposition to the glorification of centralized civil State and (and their personifications, the monarchs) and their reassertions natural law and the contractual and limited nature of government.
Well, I don't think Hobbes could be called a very sincere believer in any historic Protestant confession...
Agreed. In fact, if I’m remembering correctly, what he advocated for was quite the opposite given that he wanted to centralize control over religion
An interesting essay, whose sixth and seventh paragraphs provide the most convincing critique of Vermeule I've encountered.
My own current position is that while there is no logical limit to the power a ruler ought to be able to wield in the pursuit of the good. But it is the good, not the power that is truly good, and power is only good in proportion to the virtue of the possessor. So I'm against the idea of utterly impermeable boundaries set against authority and between different powers, while I am for such division as a matter of prudence as the circumstances may dictate their necessity.
Could you cite chapter and verse on the quotation from Aristotle?
Thanks Michael.
That depends on what you mean by utterly impermeable. No constitutional settlement can be permanent—and it can be necessary to have revolutionary transitions between one settlement and another—but any settlement ought to have separate powers, decentralization, and written prospective law. It should have these attributes because they are necessary to protect people from evil, and they should be firmly established within the constitutional settlement itself.
The citation in Aristotle is book V chapter 6: http://nothingistic.org/library/aristotle/nicomachean/nicomachean35.html
Your bio mentions that you live in rural New Hampshire, it could be argued that the centralization economic powers that occurred after the war, but even if focus just on the immense centralization that occurred between the latter 1970s and mid 1980s harmed many areas of New Hampshire, through no fault of their own, after losing power they personally held as communities for almost 200 years
I wouldn't disagree.
Vermeule's response and my reply: https://substack.com/@ianhuyett/note/c-68522518
To read the book outside the author’s express statement that his concern is primarily the interpretation of law seems to allow you to construct a political theorist from a constitutional lawyer. Political theory pertains, because of the ius discurva that is constitutional law; and no doubt he argues that authority must accompany the ability to do the common good. It is good to have the power of a giant and terrible to use such power. But the common good restrains the abuse of power. To leave the common good out of political deliberations renders the politician illegitimate.
Vermeule explicitly discusses political theory throughout the book. Judges should always uphold centralized power, for example, because the decentralization of power is bad. You can’t get around the fact that the premise there is a statement about political philosophy.
Often he doesn’t even bother with the framing of judicial interpretation, and simply attacks the idea of restraining the state’s power in general.
I agree with the statement, at least in its ordinary meaning, that the common good should be the foundation of jurisprudence. I disagree that the common good is advanced by having an absolute, centralized state unlimited by any separated or decentralized powers or by prospective written laws.
Constitutional legal interpretation does embed political theory by its very nature. But I think we should take authors at their word. Vermeule states very clearly his work in Common Good Constitutionalism is a work on legal interpretation. I have also never read him write that “decentralization of power is bad.” I don’t think it is in this book. I have read that authority needs to be appropriate to fulfill the common good. Of course if one reads him through a Hobbesian war of all against all, one will find him authoritarian. Social contract arises out of the contest of wills — and any will that receives authority will be “authoritarian.” But the common good tradition does not see humans as “born free but everywhere in chains.” It seems humans as basically social, and thinks it is possible to order things to the Good with reason, not merely through the exercise of the will. I doubt if I will persuade you, but the difference between liberalism of the right and the left and the common good tradition is deeper than “centralization of power is good.”