A lesson of virtue
  ·  2022-07-15  ·   Source: NO.29 JULY 21, 2022
"American constitutional law has lost sight of the classical conception that law is a teacher of virtue and must be ordered to the benefit of the whole community." —Adrian Vermeule, Ralph S. Tyler, Jr. Professor of Constitutional Law, at Harvard Law School (XINHUA)

Classical conceptions of the common good differ little between East and West, but modern interpretations are growing more distant.

Would you rather be poor in a rich nation or rich in a poor nation? This question has inspired never-ending debate since the first century A.D., when Roman historian and moralist Valerius Maximus first said of the ancient Romans that "they would rather be poor in a rich empire than rich in a poor empire." Sentiment in the U.S. currently differs from that of the ancient Romans in the opinion of Harvard Law School professor, Adrian Vermeule, who says the current American position on the subject is "seemingly clever" but ultimately "self-defeating."

As a polity becomes increasingly disordered, increasingly remote from a flourishing commonwealth promoting peace, justice and abundance, the claims of the common good and indeed the natural law actually become more visible, more insistent, and less debatable. This is a paradox suggested by Vermeule in a recent lecture delivered at the launch of his new book Common Good Constitutionalism. "American constitutional law has lost sight of its classical legal heritage," he states.

The common good, defined in the classical Western legal tradition, corresponds to the Chinese concept of xiaokang, a society of moderate prosperity. "The centrality of the common good to Chinese notions of good government is transmitted by its political culture," said John Pang, Malaysian senior fellow at Bard College in New York. It is believed that the phrase was first used to describe a well-off life in the Book of Songs, China's first anthology of poems, which dates back more than 2,000 years.

To explore this intersection of concepts that have influenced the legal systems of both the East and the West, Beijing Review senior editor Li Fangfang interviewed Professor Vermeule and Mr. Pang via video. Here are some excerpts:

Beijing Review: A different understanding of certain terms, for example, human rights, has triggered many political and economic consequences between countries. Do you think there is a universal definition of the common good for the international community that takes into consideration the concerns of the West, East, North and South? 

Adrian Vermeule

Adrian Vermeule: Yes and no. The classical framework of Western law posits that in principle, the proper end of temporal government is the same in all societies: to promote the flourishing of the political community as such, a state of peace, justice and abundance, and to promote the material and social preconditions for that flourishing. This flourishing of the political community is also the highest temporal good of the individuals who comprise the community, in the sense that one cannot fully enjoy even the private goods of family and individual life in an impoverished, decaying and violent political community, as we are increasingly discovering in the United States.

However, the classical framework also holds that this general aim of government must be implemented differently in different polities, according to their particular circumstances, traditions, culture, and governing institutions of the relevant society. What matters is that the prudential judgment of public authorities be directed to the common good as defined above, rather than to private or selfish benefit. Governance directed to private benefit, corrupt rule, is the classical definition of tyranny; note that this differs from modern definitions of tyranny that center on the violation of liberal, autonomy-based rights. In contrast to liberal democracy, which aims to impose a very particular institutional pattern on every society across the globe, remaking every society in its own image, the classical tradition holds that there is no one preferred set of particular institutional forms. What matters is the ends or aims to which governance is devoted, subject to the constraints of the particular civil and customary law of the polity, of the law of nations, of natural justice and the duty to practice public-spirited virtue proper to rulers. Again, I am speaking of the classical view here, which respects cultural differences, unlike the liberal-democratic view, which is institutionally imperialist. 

John Pang

John Pang: The centrality of the common good to Chinese notions of good government are transmitted by its political culture. Today the government has described as its major project the attainment of xiaokang for the Chinese people. This is a phrase that hearkens to the Book of Songs.

The people indeed are heavily burdened,

But perhaps a little ease (xiaokang) may be got for them.

Let us cherish this center of the kingdom,

To secure the repose of the four quarters of it.

Let us give no indulgence to the wily and obsequious,

In order to make the unconscientious careful,

And to repress robbers and oppressors,

Who have no fear of the clear will [of Heaven].

Then let us show kindness to those who are distant, and help those who are near; —

Thus establishing [the throne of] our king.

—Min Lao, a poem translated by the Scottish SinologistJames Legge 

You used the quote, "No man is an island," in your lecture. This coincides with Chinese President Xi Jinping's remark at the 2018 Beijing Summit of the Forum on China-Africa Cooperation that "No one who keeps himself in isolation on a single island will have a shared future." The benefit of the whole community being given priority when dealing with problems is a concept largely understood in China. In your opinion, what should people do to balance individual and collective benefit when having to decide between them? And what role does the legal system have in facilitating this balance?

Adrian Vermeule: The full quote is from John Donne, an English poet of the early 17th century, and goes: "No man is an island, entire of itself; every man is a piece of the continent." Whatever Donne's original intentions, if we read his aphorism as social commentary, I'm struck by the parallelism to President Xi's quote. To put the thought another way, Robinson Crusoe, marooned alone on an island, is in one sense perfectly free, but in a deeper sense is unfree, because he is incapable of enjoying the benefits of a common civilization.

Since the 1960s, the disease of aggressive individualism has overrun American intellectual life, culture and politics. On the classical view, by contrast, the common good of the community is the highest temporal good event for individuals themselves. On this conception, if I may quibble a bit, it is not a question of balancing individual and collective goods, or of overriding individual goods by the preferences of the majority. Rather it is that the rights of individuals are always, from the beginning, themselves ordered to the common good, and their scope and weight is defined accordingly. The classical tradition thus very much recognizes rights, but justifies them in a very different way than liberal individualism does. Classically, rights are themselves justified not on the liberal ground of individual autonomy, but insofar as recognizing such rights benefits the community.

What could be the underlying reason for the fact that many Americans would rather be rich in a poor nation than be poor in a rich nation, which you see as self-defeating? What role do law and morality play in such a society?  

Adrian Vermeule: It’s hard to disentangle all the influences, material and cultural, which have produced this state of affairs. Suffice it to say that two developments stand out. One is that American elites increasingly are detached from the views and interests of the people they govern – detached economically, culturally, even geographically. They see the people not as fellow citizens for whose welfare they have a responsibility, but as alien masses that pose a threat to “democracy,” by which the elites mean liberalism. Another development in the domain of law, and in some ways the subject of Common Good Constitutionalism, is that American constitutional law has lost sight of the classical conception that law is a teacher of virtue and must be ordered to the benefit of the whole community. Instead, our law is increasingly a charter of liberal autonomy-based individual rights — a vision that serves the interests of affluent elites much better than it serves the welfare of the people as a whole, who generally suffer the most from free divorce, the dissolution of family structures, and corporate domination of the economy.

American liberal elites imagine themselves as in a certain way floating above society. Yet I think it has become clear even to them that they are ultimately located in space, in a geographic political community, and that they cannot entirely separate themselves from that community for good or for ill, even if they live in gated compounds and generally attempt to insulate themselves from the increasingly decayed, fractious, and disordered society around them. Like it or not, all those in a common society ultimately share a common fate.

In the 1930s, Lin Yutang, a famous Chinese writer once compared the Western legal sense with that in China based on his observance. “A constitution presupposes that our rulers might be crooks who might abuse their power and violate our ‘rights,’ in which case we would use the constitution as a weapon to defend ourselves,” he wrote. In providing a comparison, he continued that the Chinese conception of government is of  a parental government or government by gentlemen, who are supposed to look after the people’s interests as parents in whose hands they place their full confidence. Could you share with us your insights into the major differences between the U.S. political system and China’s? In which aspects do you think the two countries can learn from each other? 

Adrian Vermeule: One of the main points of the book is that American legal scholars have, since the Second World War, constructed an “invented tradition” that has falsified and rewritten the history and principles of the American constitutional order. Abandoning the classical focus on the common good as the proper end of government, American legal theorists of both left and right have adopted an approach that is both more positivist (or, more accurately, pretends to be more positivist) and more individualist than the classical tradition. On this approach, constitutional law is seen primarily as a way of securing individual rights, justified by reference to liberal autonomy, against a threatening state. Constitutionalism is, as in Lin Yutang’s diagnosis, primarily a weapon of self-defense for a populace suspicious of its rulers.

But to underscore, this is not the classical conception of constitutionalism, and it is becoming clear that this conception has produced at least as many ills as it has fended off. So I would not subscribe to any suggestion that the only version of constitutionalism is the liberal version. The classical Chinese dynasties certainly had constitutions with a small “c,” in the sense of fundamental normative principles of political right that guided the conception of what the proper aims of public authorities should be, even if they did not have written constitutions or constitutions founded on liberal rights. They also had the rule of law, as (for example) the elaborate Qing Dynasty legal codes and adjudicative systems will attest; there are many examples of Chinese judges deciding that lower-level authorities had issued administrative orders or decreed punishments in error or too harshly. More broadly, as a famous book by Charles Howard McIlwain argued, ancient and modern constitutionalism have to be distinguished. Not all constitutions are modern written constitutions, and not all written constitutions are liberal constitutions. Indeed, as I argue, I don’t think even the American written constitution is best understood as a liberal constitution, in the way it has been interpreted since World War II.

John Pang: How then to characterize an underlying philosophical basis of the Chinese legal system? Where is the continuity between its past and present, East and West to be found? I'd suggest it is in the persistence of fundamental notions of order and harmony, seen not just in its legal traditions and political philosophies but in an enduring political theology that underlies the contending schools of political thought, whether Daoist, Buddhist, Confucian or Legalist.

The continuity of China's legal practice, given its turbulent recent history, must be found in its continuous political culture rather than in formal institutional continuity. The orientation of this culture to the common good is opaque to the modern liberal perspective, but so is that of the classical tradition of the West, and that of any historical culture that has ever inhabited the earth.

We can do much better than to try to translate Chinese conceptions of cosmic, natural and human order into contemporary Western, that is to say, liberal terms that are flattened versions of formerly rich concepts, corrosive of political and social community. If, even in the West, "law" no longer means what it used to, easy comparisons that inevitably end up measuring Chinese practice in these terms, amidst the country’s recovery from a century of violent encounter with modernism and legal liberalism, are doubly impoverishing. This is not to retreat into relativism or set up a counter-exceptionalism. The need to build bridges of dialogue has never been more urgent. The firm bank across the river is the classical Western tradition articulated briliantly for our time by Professor Vermeule in Common Good Constitutionalism.

Copyedited by G.P. Wilson  

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