Various writers including Adrian Vermeule of Harvard have advanced a rather unfettered common-good approach to jurisprudence. Some who like the approach have suggested that it is not much different than what liberal judges have been doing for years – except that it is conservative. To me, vigorous judicial activism seems equally alarming whether it is practiced by the left or the right.
Yet we had better not judge hastily, for after all, the purpose of law is the common good. Is there such a thing as a fettered common-good jurisprudence -- a way to have judges consider the common good which puts the brakes on judicial usurpation of legislative judgments of the common good?
Some have suggested a relatively modest sort of common-good jurisprudence, which would allow judges to apply the criterion of the common good only when the law is unclear. Maybe, but some questions remain to be asked.
Let’s try to think not like lawyers, but like constitutional designers.
In the first place, why not say that judges should use the criterion not when the law is unclear, but only when failure to do so would produce a result contrary to presumed legislative intention? Or, to limit judges even further, why not say that they should use it only when failure to do so would produce a result contrary to actual legislative intention?
For that matter, if the law is ambiguous, but the situation is not an emergency, then why must judges rule at all? Why not say that no ruling can be made until the legislature clarifies the law? I know this isn’t how we usually think about such matters. But should it be? I am thinking especially of regulatory law.
Suppose judges do use the criterion of the common good. May they interpret the common good differently than the legislature does? And how much does the answer to that question depend on how confused about the meaning of the common good the judges -- or legislators -- are in the first place? Someone has to decide how confused they are, of course. I am thinking of the constitutional craftsmen and revisers -- and yes, I know there are problems there too.
If we do want judges to use the criterion of the common good, then how can we keep judges from defining the common good tendentiously, tailoring their definitions to suit their personal agendas? We don’t want the incantation “the common good, the common good” to be an abracadabra which allows judges to do whatever they please.
By the way, a similar problem arises if judges are allowed to consider the natural law – definitions may be tendentious in that realm too. I’ve written before that this is no reason to say that judges should not consider the natural law. For even if judges push the natural law out the front door, what amounts to careless natural law reasoning creeps in through the back door, disguised as something else. So, I’ve argued, rather than not thinking about the natural law, judges should think about it better. In the same vein, should we say that rather than not thinking about the common good, judges should think about the common good better?
Continuing my little digression, a distinction is necessary too. Anyone, whether a judge or a legislator, can understand the basics of the natural law. However, legislators are much better situated than judges are to work out their detailed, remote implications. For this reason I think the case for deferring to legislative judgments of what the natural law requires is strong when we are thinking of the details, weak when we are thinking of the basics. Perhaps an analogous distinction applies in the case of the common good. In this case, judges would have little or no authority to substitute their detailed judgments of what the common good requires for those of the legislature. But if the legislature blatantly pursued private interests instead of the common good, that might be a different kettle of fish.
Here is another issue. Someone might suggest that in principle, judges should consider the common good, but the morally skeptical law culture, and the even more skeptical law school culture, in which judges are formed, makes it dangerous to allow judges the same degree of discretion that would be reasonable if these cultures were different. In England, it used to be said that the monarch had a power of prerogative – a power “to do good without a rule” – a power to do something for the common good even in the absence of a legislative rule explicitly authorizing what he wanted to do. John Locke remarked that the English parliament sometimes expanded and sometimes contracted royal prerogative, depending on its judgment of the moral character and wisdom of the king. Should we expand and contract the judicial “prerogative” in the same way?
If so, then should the degree of discretion we are willing to grant judges in the name of the common good depend only on the moral character of judges, or also on the moral character of either the voting public or the legislators whom they choose? I distinguish the latter two groups because legislators might be either more or less virtuous than voters. Why is that? Because if voters choose the most virtuous legislators they can find, then those whom they choose may on the whole have even better moral character than they do; but if voters are either corrupt or deceived, then those whom they choose may on the whole have even worse moral character than they do. Knaves usually prefer to be ruled by scoundrels.
Finally, how much should our answers to questions like these depend on long-term prudence, and how much should they depend on short-term prudence? For example, it is almost always prudent in the long term to practice separation of functions: Those who make general rules should be a different group of people than those who apply these rules to the adjudication of particular cases. But if one of these groups becomes profoundly untrustworthy, then someone might argue that in the short term it may be prudent to alter such arrangements. He might suggest that we may even resort to letting legislators judge, or letting judges legislate. Needless to say, such arrangements might be put into place for the wrong reasons. Considering them “thinkable” may make them even more likely to be put into place for the wrong reasons. Another drawback is that even if they are put into place for the right reasons, it might be very difficult to reverse them when they are no longer needed. In fact, they may tend to perpetuate the character faults that prompted their use in the first place, for those who are shut out of decisions tend to become even less capable of exercising good judgment.
Don't say checks and balances will take care of all these problems. Checks and balances assume that legislators will be jealous of their authority and resist judicial usurpation, but legislators may even have motives to kick controversial decisions to judges. After all, they stand for re-election and judges don't.
I don’t have answers to these questions or solutions to these difficulties. I’m just trying to frame them.