- INTRODUCTION
Vermeule’s highly original contribution to jurisprudence is a direct challenge to the two prevailing jurisprudential schools in the United States, and by extension, also, in other jurisdictions, such as Pakistan, where American jurisprudential debates have an influence. The two dominant theories are, originalism and progressivism. Vermeule considers both to be deficient, and proposes another theoretical framework, that of Common Good Constitutionalism.
The framework that the book adopts is, itself, Dworkinian. Common Good Constitutionalism, according to Vermeule, is a better account of law in accordance “with Dworkin’s law-as-integrity, combining ‘fit’ and ‘justification’” (Vermeule, 2022, p. 69). In other words, Vermeule’s Common Good Constitutionalism provides a better justification of law in terms of political morality, and is also a better fit with American jurisprudence, seen as a whole, with the last few chapters having been a deviation, which ought to be ripped out. For Vermeule, this deviation occurred due to progressivism’s pursuit for “the relentless expansion of individualistic autonomy” (p. 36), which itself was a reflection of the society’s sexual revolution in the 1960s, countered by positivism’s adherence “to conventions giving legal force to past acts of sovereign will” (p. 180-181), treating promulgated text “as cryptic collection of words dropped from the sky” (p. 83). Originalism, according to Vermeule, was a reaction by the conservatives to counter progressivism, with its genesis, in providing an alternative framework for uprooting “the evolving doctrine of the Warren and Burger Courts, which conservatives despised” (p. 93).
Interestingly, though, what originalism sought to do to progressivism, Vermeule’s Common-Good Constitutionalism, in turn, seeks to do to, both, originalism and progressivism. Also, while Vermeule adopts the overarching Dworkinian framework, he, nevertheless, does not agree with Dworkin all the way. According to Vermeule, Common Good Constitutionalism provides “a better account of justification than the one Dworkin offers” (p. 69). Dworkin’s account is more attuned to the rights of individuals in light of the overarching principle of “equal respect and concern” for each person in a polity. Vermeule does not agree with this conception of rights, whereby “rights exist to serve, and are delimited by, a conception of justice that is itself ordered to the common good” and “not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today” (p. 24, p4). In a phrase repeated in quite a few places in the book, the correct framework for rights, in Vermeule’s conception, has to be about “giving every man his due” (p. 4).
Common-Good Constitutionalism, itself, has been painted by Vermeule, at a very high level of generality, with common good defined in relation to the famous trinity, “’peace, justice and abundance’” (p. 7). The theory provides that law is “a reasoned ordering to the common good” (p. 1), that is, the “public authority must act through rational ordinances oriented to the common good” (p. 9). Vermeule invokes the image of a football team with a “unitary aim” that requires “cooperation of all and that is not diminished by being shared” (p. 28). With this, he completely disavows utilitarianism and individualism, purporting that the conception of justice under Common Good Constitutionalism is not reduced to “individual autonomy and preference satisfaction” (p. 184), but, instead, oriented towards pursuing the ends of the community as a whole, which is a distinct conception than the utilitarian summation of individual gratifications.
The book has a lot going on, but for our purposes, in this article, there is a heightened focus on only two aspects. First, the article focuses on Vermeule’s complete and utter dismantling of positivism, as an insufficient account of what constitutes the law. For us, Vermeule’s attack on positivism matters because, in the past, and even now in Pakistan, whenever authoritarianism rises, there is a disproportionate increase in apologist jurists wholeheartedly embracing positivism. In other words, it remains important that the text already in existence, and the text newly promulgated by non-democratic forces, or on the behest of those forces, has to be read in conformance with the “general principles, rooted in political morality, whose origin do not seem to depend on any particular act of positive law making” (p. 6). The reliance on positivism needs to be put under sustained pressure in Pakistan, since it appears in various shades, and allows jurists, in various different times, to state with a straight face, that the law is the law, irrespective of how and where it comes from, and whether it completely dismantles the established principles of political morality in our community.
Second, the article focuses on the book’s engagement with the question of abuse of authority, and the way the doctrine of Common Good Constitutionalism addresses this concern. Borrowing from his area of expertise, the administrative law, Vermeule advocates for a general deference to the authority, unless the authority exercises jurisdiction not vested in it, without any conceivable public interest, or exercises that authority arbitrarily and whimsically.
Individual rights, in Vermeule’s view, ought not operate as a separate distinct restriction on the public authority. This article does not make any claims as to the workability of this framework, in the US. But such a conception seemingly is just not relevant in Pakistan, where the abuse of power is rampant, and the public authority acting within the bounds of law is a rarity. Under the multiple martial laws in Pakistan, both hard and soft, the rights of the people are nullified and reduced to words on the paper, which Justice Scalia used to refer to as “parchment rights”. Deference to the authority, as a framework, with the conception of rights providing no further restraint, may be highly counter-productive in Pakistan. As a result, for Pakistan, Dworkinism all the way through, probably, remains the better conception of law.
- POSITIVISM IS DEFICIENT
Vermeule’s dismantling project of positivism occurs in two different ways. First, Vermeule shows that positivism is not a complete account of what the law actually is. It provides an incomplete picture. Second, Vermeule takes apart the pretensions of positivism, namely, that it is an objective theory, showing conclusively that positivism is just as much laden with normative concerns as living constitutionalism. Positivism just pretends otherwise.
Positive law, Vermeule argues, is contained within and is only a portion of the “larger objective order of legal principles and can only be interpreted in accordance with those principles” (p. 2). Put differently, what has been enacted is only a subset of much broader fabric, that in its entirety is the law. Even the very nature of the positive law is not antithetical to natural law since “[t]he natural and positive law, for example, work together in a larger framework, in which the positive law specifies and gives concrete form to general principles established by the natural law” (p. 58). The positive law is just that portion of the law which attained its form on the basis of concretization of the natural law principles. There is no conflict, in other words, between the natural law and the positive law – the positive law being that portion of the natural law, which gets enacted. These background principles in any particular legal system, are “hard-won and deeply-embedded” such as the ones enunciated in Riggs v. Palmer,[1] that “one should not be allowed to profit by his own wrong” (p. 68).[2]
The arguments, for instance, that were made by the former Chief Justice of Pakistan, Justice Qazi Faez Isa, during the proceedings in the reserved seats case,[3] and have since been repeatedly made by others, for instance, during and after the passage the Constitution (Twenty-Sixth Amendment) Act, 2024 (“Twenty-Sixth Amendment”) are all rooted in positivism. The unfaltering position of those who have been the cheerleaders of the Twenty-Sixth Amendment, is that the legislature’s will prevails – no if and buts. While Vermeule makes a case for “presumptive textualism”, the enacted text, as Vermeule would put it, nevertheless, has to be read, firstly, as if it is oriented towards the public good. Moreover, the enacted text only forms a portion of the much bigger conception of law, in which hard-won principles feature prominently. Therefore, all positive law – the expressly enacted text – has to be interpreted and construed in light of these background principles.
In the US, originalism has presented itself as an objective way of doing law, tethering the judges from going rogue, under the supposed no-holds-barred approach of living constitutionalism. Dworkin, as cited by Vermeule, has shown that positivism took root in the US, and established itself, under the pretension that it brings “democratic accountability and transparency, clarity, certainty, and predictability to the law, in place of the (putative) obscurity, legalistic elitism, and arbitrariness of principle-ridden common-law rulemaking” (p. 143). Relatedly, the positivist operates under the nirvana fallacy, where, “[f]or the originalist, to cut loose the anchor of text and original understanding inevitably means drifting helplessly amidst a welter of normative arguments, without a common standard” (p. 115). The proponents of originalism purport that it is either originalism, or else, anything goes.
But Vermeule presents that “originalism by no means avoids normative judgments; it merely leaves them implicit and unacknowledged” (p. 115). There are two ways through which this happens. One, as Vermeule puts it, it is just not possible to “ascribe ‘meaning’” to a Constitutional text “without some explicit or implicit conception of basic preconditions for meaning such as the rationality of the authority that enacted the text” (p. 91). Under the positivistic conception a distinction is often drawn between “interpretation” and “construction”, where “normative argument is relegated to ‘construction zone’ when semantic meaning is indeterminate” (pg. 94). But, as Vermeule highlights, in practice, principles are called upon “even to understand what the text means” (p. 94). It is because of this reason he refers to originalism’s purported objectivity to be “an illusion, mere talk” (p. 94).
Two, normativity comes in again for the purposes of deciding the “level of generality at which meaning is specified” (p. 94). There are two separate versions of originalism: “the specific expectations originalism” and “abstract originalism” (p. 94), under both of which it can be said that “the putative original meaning of the text has been fixed as of the time of enactment” (p. 96). Under the specific version, the question is whether specific results would have been possible at the time the text was enacted. That is, the meaning of the text, itself, is confined to the “specific applications the relevant actors expected would result from the enacted language” (p. 94). The other version, which is also referred to as semantic originalism, the level of generality shifts, and the meaning of the text is to be gauged from the “abstract semantic content of the words” (p. 94). Originalism, itself, does not advocate for either of the versions, which, then, allows the originalists to move back and forth between the two. Further, the text to be interpreted, itself, often embeds language which has inherent ambiguity, and an interpreter has no other way available, but to employ conceptions informed by principles, to attribute a meaning to the enacted text. As Vermeule puts it “[w]hen stated at a high level of generality, originalism becomes a vacuous commitment that allows interpreters to implement abstract concepts written in the Constitution, such as ‘liberty’ and ‘equality’, in ways that are pragmatically indistinguishable from the progressive constitutionalism that originalism was created and designed to oppose” (p. 99). Any generality has to involve principles for the purposes of resolving differences in interpreting the text.
In short, originalism claims that it is an objective way of doing law, whereas living constitutionalism is not. But, as Vermeule, and Dworkin before him, have shown, that originalism’s objectivity is nothing but an illusion. It is highly disruptive, and it allows the jurists to sneak in their worldview, as the originalist shifts back-and-forth between specific expectations originalism and abstract originalism. Moreover, the language of the Constitution, itself, is often broad and amorphous, which can only possibly be interpreted through the invocation of principles, over which there is necessarily going to be disagreement.
- WHAT ABOUT AUTHORITY?
The most problematic aspect of the book is its treatment of public authority. But then Vermeule did not write the book addressing the constitutional concerns of Pakistan, but those of the US, where such a conception may or may not work. Vermeule, nonetheless, has a requisite disclaimer that “[t]he classical tradition rests, in the end, on the overarching principle of bona fides, good faith” and that “[w]here such good faith is systematically absent, the law may misfire, but in such a scenario the misfiring of the law would be the least of the polity’s concerns” (p. 70). The conception of the Common Good Constitutionalism rests on “bonafides”, otherwise, concededly, the “law may misfire” (p. 70).
First, Vermeule has a normative conception of public authority. The public authority has to “act through rational ordinances oriented to the common good” (p. 9). Because of this assumption, “[d]eference is essentially the favourite tool of the classical lawyer: the rebuttable presumption of authority” (p. 46). This rebuttable presumption is only rebutted on three conditions: “(1) a particular body acts outside its sphere of legal competence, or (2) it pursues aims that have no imaginable public purpose, or (3) it acts in an unreasoned manner, arbitrarily and capriciously” (p. 46). Noticeably, though, under Vermeule’s conception, there is no restriction on the public authority on the basis of fundamental rights of the people.
Vermeule is a confessed conservative, and it shows. In the book, he takes fault with the progressives and libertarians on the basis that both of them assert that the public authority ought not impose its version of the morality through legislation, or even otherwise. Vermeule disagrees with them stating that “all legislation is necessarily founded on some substantive conception of morality”, and in fact, “the promotion of morality is a core and legitimate function of authority” (p. 37). Further, with regards to concerns regarding abuse of power he has two objections. One, he asserts that “to speak of ‘abuse of power’ is, necessarily, to assume some picture, explicit or implicit, of what goods power may or must legitimately aim to promote” (p. 49). That is, the very conception of abuse of power is laden with normative views of what constitutes as abuse. And any conception of abuse of power entails that there be “an account of the legitimate ends of the good governance” (p. 49). Vermeule asserts, that “[t]he emphasis on prevention of tyranny in the name of autonomy overlooks that tyranny may itself arise in the very name of protecting autonomy” (p. 50). In other words, if the legitimate end of good governance is understood to increase individual autonomy, then in pursuance of such ends, there may also be abuse.
Two, abuse does not solely emanate from the “official organs of government”, but also by “[a]ctors empowered directly or indirectly by law – including the property entitlements of corporate law and common law – may abuse their power throughout the society and economy” (p. 50). Put differently, the obsession with abuse of authority emanating from the “official organs of government” often comes at the cost of forgetting that abuse often occurs from the private actors, which the law may have empowered in such regard. In the context of the US, corporations have been granted immense power, for instance, due an expansive reading of the First Amendment of their Constitution, which allows the corporations in the US, to have an oversized say in the electoral process.
But, Vermeule is acutely aware that his Common Good Constitutionalism is not a theory that can be put to service for curtailing the abuse of power. Because, in the end, he settles for “the simplest rejoinder to the libertarians … that robust governance for the common good prevents or cures abuses as well as risking their occurrence” (p. 51). Common Good Constitutionalism may prevent private abuse, but not public authority’s abuse. It may prevent abuse purportedly undertaken in pursuance of increasing individual autonomy, but not from the abuse of the public authority as it enforces its conception of morality on the people.
The way law functions and operates in Pakistan, though, has nothing to do with bona-fides and good-faith, and, therefore, the law just does not only misfire, but it unleashes a whole battalion of never-ending forces against the people and the public good. Such forces have been deployed throughout history, in varying strengths, but in the recent couple of years, there has been a renewed vigor in this enterprise. Therefore, whatever Vermeule has said with regards to authority, has no place in relation to Pakistan. Vermeule, in all likelihood, would himself agree.
Vermeule’s observation of public authority’s abuse, as opposed to private abuse, is also completely misplaced in the context of Pakistan. Because the bulk of private abuse in Pakistan occurs through public offices, as well. While the State hounds the ones it disagrees with by the use of First Information Reports (FIRs), for instance, putting in motion the abysmal and archaic criminal justice system against an individual and their family members, the powerful in the private domain, also do the same, with the assistance of the public officials. The private interests, in other words, heavily rely upon the abusive mechanisms put in motion by the public authority.
- CONCLUSION
Vermeule – just like Dworkin before him – in this book, ‘Common Good Constitutionalism’, has done a huge service by exposing and undermining the assumptions of originalism. Originalism is based on a conception of law that is not a complete account of what the law is. Second, the project of originalism, as deployed in the US, to discredit living constitutionalism, by presenting itself as an objective way of doing law, is just not the truth. There are principles and worldviews sneaked in, while interpreting and constructing texts, without admitting to doing so. In this way, originalism is a theory based on mere pretensions. And these pretensions were also exposed when originalism was deployed in Pakistan, by the likes of former Chief Justice Qazi Faez Isa, just like many others before him, such as Justice Muhammad Munir, to do the bidding of the entrenched establishment, by hanging on to a theory, chosen at whim, applied in selective cases only, to reach results that the establishment required the judiciary to reach.
The book also advocates for deference to public authority, which, perhaps, has no place in the context of Pakistan. But Vermeule, probably, understood that his conception requires an assumption of “good-faith” and “bona-fides”, which is just not the way law is done in Pakistan. To put it crassly, law in Pakistan is used as a blunt force, by those in power, to tame and keep subservient the various groups and factions within the society, from where any potential resistance may come to challenge power.
Therefore, the very basis to assume a broad deference towards public authority, just does not exist in Pakistan. As a result, it remains important to remain skeptical of the government as it tries to impose control, even if couched in some language of morality. Because the relationship between the people of Pakistan and the public authority, has been one of abuse, ratcheted up, to new heights, every now and then. In such a context, Dworkinian approach remains relevant, whereby justification of the law has to be on the basis of “equal respect and concern” of individuals – each one – rather than an amorphous concept of “public good” at a communal level, which at that level of generality, may be defined by those in power in perverse ways, only to benefit themselves, such as the purported “public good” of attaining and safeguarding national security.
References
[1] Riggs v. Pamer, 115 N.Y. 506 (1889).
[2] Vermeule cites from Henry M. Hart & Albert M. Sacks, ‘The Legal Process: Basic Problems in the Making and Application of Law 101’ (1958).
[3] Sunni Itthehad Council and another v. Election Commission of Pakistan and others, Civil Appeals No. 333 and 334 of 2024 and connected applications.
