The James Wilson Foundation on Natural Rights and the American Founding

“A Jurisprudential Red Pill: Part II” – Evelyn Blacklock

by James Wilson Institute on June 2, 2022

Evelyn Blacklock continues her review of Prof. Adrian Vermeule’s book Common Good Constitutionalism in part two of “A Jurisprudential Red Pill.” In this final installment, she discusses the classical legal tradition as the tradition of the U.S. legal system. In his book, Vermeule recognizes elements of the classical legal tradition in the American legal system, though he recognizes it is not a perfect fit in all instances. Blacklock argues the book’s account leaves room for questions in the reader’s mind but also contributes in a valuable manner to the ongoing conversation on American legal discourse. 

We have included a few excerpts for your perusal.

Part I of this review discussed three aspects of the classical legal cosmos that Prof. Adrian Vermeule’s Common Good Constitutionalism presents in a fresh light: the nature of law and relationship between lex and ius, the nature and justificatory structure of personal rights, and the nature of legal interpretation. Those concepts are foundational to the book’s more ambitious arguments about the American constitutional order, although the book’s presentation of them could also stand alone as a valuable and accessible account of the classical legal tradition. But Vermeule wants to do more than just revive an understanding of the classical legal tradition. He wants to show that the classical tradition is our tradition. To do that, the book offers neither a historicist nor a purely theoretical account, but rather a ‘work of interpretation,’ a lawyer’s effort to offer the best interpretive account of the American constitutional order in light of its animating principles and ideals. This turns out to be a rather Herculean task, and even the reader who nods along with the book’s account of the classical legal tradition may have lingering questions about the book’s larger interpretive sketch of the American constitutional order. Regardless, Vermeule has made a bold claim here that is worth exploring further.”

“The book builds on that interpretivist approach to law to make its bolder claim that the classical legal tradition is – not just ought to be – our legal tradition. That is, the book attempts a kind of meta fitting-and-justifying project, aiming to show that the classical law ‘is the best of our tradition,’ even if it has been driven underground at the level of rhetoric and in the legal academy.” 

“Of course, Vermeule acknowledges, as he must, that not all the available legal material is a good fit with the classical tradition. Positivist and instrumentalist conceptions of law, and their corresponding originalist and progressive modes of interpretation, have broken with the tradition and undoubtedly influenced our law, usually in an individualist and libertarian direction. But still, the book argues, the break with the tradition is recent, and it has not been clean.”

“At a more theoretical level, the book’s interpretive account of the American constitutional order leaves some questions open, at least in my mind, about the extent to which positivist originalism and instrumentalist progressivism can claim to be natural outgrowths of principles that are as deeply embedded as classical principles in American law. Those questions tie into larger debates in political philosophy about how to understand the relationship between the classical tradition and American political order. Sketching very broadly, at least two different major strands of thought animate American law and political order.”

“Even with that wrinkle, Common Good Constitutionalism makes a sorely needed contribution to American legal discourse… If nothing else, the book should stir up the legal academy and spice up the conversation. And if the initial responses are any indication, it is already doing just that.”

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Law and liberty cannot rationally become the objects of our love, unless they first become the objects of our knowledge.
— James Wilson, Lectures on Law, 1790