—José Ignacio Hernández G., Fellow, Growth Lab-Center for International Development Harvard; Professor of Administrative Law at Universidad Católica Andrés Bello; Invited Professor, Universidad Castilla-La Mancha, and Tashkent University
Adrian Vermeule has recently proposed a new legal theory to interpret the U.S. Constitution that departs from originalism and living constitutionalism: the common good constitutionalism (CGC).[i] At the proposal’s core is classical legal theory as the methodology to frame the interpretation of the Constitution. Rather than interpretation focused only on rules (or lex), the classical legal tradition supports an interpretation that considers principles and values (or jus). In that sense, the common good is an axiological value that informs constitutional interpretation, with the purpose to promote the “flourishing of a well-ordered political community”.[ii] The main aim of CGC, thus, is “not the liberal goal of maximize individual autonomy or minimizing the abuse of power”, but to “ensure that the ruler has both the authority and the duty to rule well”.[iii] Also, the CGS rejects an individualistic perspective of rights, because “rights, properly understood, are always ordered to the common good and that common good is itself the highest individual interest”.[iv]
The proposal has been criticized from both the originalist and living constitutionalism perspective. Suffice it to say that, according to those critics, CGC is a new theory that does not reflect the historical roots of U.S. Constitutional Law or provide a rational interpretation framework. Some critics have suggested that CGC expands the Government’s power and threatens individual freedom.[v]
To bring perspective to this debate, it is necessary to analyze CGC beyond the U.S. For that purpose, Latin America provides a great perspective because of two reasons: (i) the common good is one of the core constitutional values, including at the Inter-American level, and (ii) when the new Hispanic American nations advanced in their independence processes, they took U.S. constitutionalism as a model of a representative Government based on the common good.[vi] Also, Latin America demonstrates the limitation and risks of the common good as an axiological constitutional value.
THE IUS COMMUNE: FROM THE DOMINICANS IN THE HISPANIOLA TO THE INDIES LAW
The European ius commune tradition inspired the Castile Law, particularly the Seven Codes (Siete Partidas) enacted by Alfonso X.[vii] At the beginning of the 16th century, in Hispaniola Island, the Dominican friars Antonio de Montesinos and Bartolomé de Las Casas invoked this tradition to defend the human nature of the indigenous people, denouncing the degrading treatment that they were suffering. Human dignity was considered an inherent right of the persons, following the ius commune, the Romanist tradition, and its Natural Law foundations.[viii]
The main imprint of the ius commune and its Romanist tradition in Latin America is its humanistic perspective, according to which the Law (jus) -as a legal system and not only as the codified rules or lex– is oriented to the common good under the centrality of the person. That vision was present in the Indies Law (Derecho Indiano), which formally protected the human dignity of the indigenous people.[ix]
However, the protection mainly worked in the formal scope. From one side, the Indies Law was “complied but not fulfilled”, because its practical implementation departed from its formal scope in several ways.[x] On the other side, from the current human rights standards, the Indies Law endorsed practices such as forced labor.[xi] As is later explained, the difference between the de jure scope (human dignity protection) and the de facto scope (forced labor) is a constant in the Latin American Constitutional Law that demonstrates the practical limits of the common good.
LATIN AMERICAN INDEPENDENCE AND THE Influence of U.S. CONSTITUTIONALISM
At the beginning of the 19th century, the political crisis of the Spanish Monarchy triggered the independence process in Latin America. Independence was oriented toward building a representative Government without disrupting the colonial order. Although the region embraced the values of the Government based on the popular will and the separation of powers, one of the concerns was to avoid debauchery or the excesses and abuses derived from an individualistic perception of freedom. Consequently, the new constitutional order was not based on unlimited freedom but on the rights and duties vested under the Law toward the common happiness of the society.[xii]
U.S. constitutionalism was considered the best model to achieve that purpose. From one side, the American Revolution was, at that time, the guiding model, both directly and indirectly, considering its influence over the French Revolution. On the other side, U.S. constitutionalism was taken as the model to design a representative Government based on the common good.[xiii]
For that purpose, the new Latin American nations interpreted U.S. constitutionalism beyond the 1787 Constitution, considering previous constitutional documents, particularly the 1776 Virginia Declaration of Rights and, more importantly, the 1780 Massachusetts Constitution. Art. VII of that Constitution was reproduced in the first Constitutions enacted in the region. For instance, Art. 191 of the 1811 Federal Constitution of the Venezuelan States -the first codified Constitution in Spanish- established that the ”Government is instituted for the common happiness”. Art. 11 of the Political Constitution of Cartagena (1812) stated that “the Government is instituted for the common good”.
The first Latin American constitutionalism did not adopt a negative definition of the Government (i.e., the Government shall not violate freedom) but a positive one, emphasizing that the effective guarantee of freedom within the community requires a Government that promotes the common good and the “protection, security and happiness of the peoples”, according with article 11 of the Political Constitution of Cartagena, dated June 14, 1812.
In early Latin American constitutionalism, the common good could be considered an influence of Catholicism, adopted as the official religion, because the new Republics preserved some aspects of the political-religious foundations of the Spanish Catholic Monarchy. Hence, the representative Government – following Rousseau´s ideas on the general will – was designed as a body in charge of the common good.[xiv] At least, in theory, this early constitutionalism could be interpreted, simultaneously, as both liberal and conservative. Liberalism was embraced through the separation of power under constitutional supremacy, while conservativism tended to preserve components of the colonial order, such as Catholicism.[xv]
As a result, the purpose of the Constitution was not only to constrain the Government, but also to enable the Government to act toward the common good. Or, following the Venezuela Constitution, to ensure a Government action aimed “to produce the greatest amount of good and happiness“.
THE EVOLUTION OF LATIN AMERICAN CONSTITUTIONALISM AND THE FIDUCIARY ROLE OF PUBLIC ADMINISTRATIONS
During the 20th century, Latin American constitutionalism evolved into a social constitutionalism.[xvi] This evolution was based on the centrality of human dignity and the common good: to ensure a dignified life, constitutions increasingly imposed positive mandates on the Government, oriented to ensure equal access to social and economic rights, based on the subsidiarity and the solidarity principles.
For example, in Argentina, the common good is considered an axiological value that determines a constitutional roof: the interpretation of the constitutional rules must consider the principles oriented to achieve the common good.[xvii]
As an axiological value, the common good justifies and enables Government action to fulfill the positive mandates derived from the Constitution. This perspective has deeply influenced Latin American administrative law, based on the German idea that administrative law is the concretized Constitutional Law.[xviii] Because of this perspective, Latin American constitutionalism has adopted a fiduciary concept of Public Administration, as the organization created to serve the persons based on good administration standards.[xix] As Spanish doctrine concludes, those standards reflect the Aristotelian-Aquinian construction of the common good.[xx]
For instance, in the Dominican Republic, the fiduciary concept has been interpreted in the sense that Public Administration must follow good administration standards to ensure the effectiveness of its action. Accordingly, administrative law constrains administrative abuses and prevents administrative inaction.[xxi]
The transformation of Latin American Constitutional Law demonstrates the evolving nature of the classical legal tradition inspired by the centrality of human dignity. That perspective has deeply influenced administrative law to the point that, from a general and comparative perspective, Latin American administrative law can be defined as the common good administrative law.[xxii]
Social constitutionalism was a response to the necessity to assure, through collective actions, a dignified life based on equal access to goods and services related to social and economic rights that the market cannot adequately supply. For that purpose, the public administration assumed positive mandates to remove the obstacles that impair a dignified life, with the final goal of promoting the common good.[xxiii]
Early constitutionalism adopted the common good as a justification for the Government´s action. After the social transformation of that constitutionalism, the common good has also justified the Government action through public administrations that promote an inclusive development.[xxiv] As a result, administrative law in Latin America is oriented to assure the quality of administrative action based on general principles inspired by the common good.[xxv]
THE INTER-AMERICAN CORPUS JURIS AND THE COMMON GOOD
Since the late 19th century, the Americas has built a transnational legal system known as Inter-American Law, or more precisely, the Inter-American corpus juris.[xxvi] The centerpiece of that transnational system is the 1948 American Declaration of the Rights and Duties of the Man (the first international human rights declaration ever signed). In that sense, the American Declaration reflects the shared legal tradition in the Americas. To summarize, these are the core principles that demonstrate this tradition: [xxvii]
- Human dignity is an inherent right of the person, regardless of the positive domestic law. This jus naturale perspective emphasizes that the juridical system (jus) is not limited to the positive law or codified rules (lex).
- Human dignity is not only a source of rights but also a source of duties. As the Declaration Preamble summarizes, “while rights exalt individual liberty, duties express the dignity of that liberty”.
- Human dignity requires a Government rooted in the common good. For that purpose, Art. XXVIII of the Declaration establishes that “the rights of man are limited by the rights of others, by the security of all, and by the just demands of the general welfare and the advancement of democracy”. According to the Organization of American States Charter, Governments must protect human dignity through socio-economic rights founded on the solidarity principle (Art. 30).
The “just demands of the general welfare” are the “just demands of the common good“, as Art. 32(2) of the 1969 American Convention on Human Rights clarifies.[xxviii] Therefore, human rights are interpreted as entitlements recognized to advance the flourishing of the community. In that sense, the Inter-American Human Rights Court has concluded that the common good promotes “the conditions of social life that allow the members of society to achieve the highest degree of personal development and the greatest validity of democratic values”.[xxix]
The reference to democratic values is relevant because it demonstrates that the common good does not endorse an authoritarian perspective on Government. Quite the contrary, the common good is opposed to two extremes: an individualistic approach to human rights and a totalitarian or collectivist perspective.[xxx]
For the CGC discussion, Inter-American Law is a relevant source, considering that the U.S. is a member state of the Organization of American States.[xxxi] Contrary to the interpretation of the Inter-American Human Rights Court, the U.S. considers the American Declaration not a binding instrument but a source of political commitment.[xxxii] Nevertheless, even assuming that position, the Declaration summarizes a shared vision toward the common good.
I am not arguing that the practical implications of the CGC proposal are the same as those in the Inter-American Law. I intend to propose a broader discussion of the common good role in the U.CS. Constitutional Law, considering Inter-American Law that, at least theoretically, applies to the US.[xxxiii]
THE COMMON GOOD AS A CONSTITUTIONAL VALUE: LIMITS AND RISKS
From the Latin American perspective, the common good is a constitutional value that facilitated the constitutional interpretation following the Inter-American corpus juris. [xxxiv]
From a practical perspective, the common good is a relevant value for constitutional interpretation because that interpretation is not only based on codified rules. On the contrary, the constitutional rules (lex) are part of the constitutional system (jus) that includes principles and values. The jus is a guide to interpreting the lex, particularly in hard cases. While rules are legal syllogisms, principles and values, as open-ended provisions, fulfill a role “as a hermeneutical reference”, determining the meaning in which the rules must be interpreted “insofar as they indicate, with varying degrees of precision, the essential purposes for which the State tends”.[xxxv]
The comparative study with Latin America has to consider the limits and risks of the common good. In a region of fragile states, the common good has resulted in an ambitious public law framework that cannot be applied appropriately: although Latin American constitutional law has endorsed transformative mandates to achieve equality, it remains one of the most unequal regions in the world.[xxxvi] Therefore, there is a gap between the de jure transformative framework and its de facto implementation. Also, the common good, in the sense of the salus populi, has paved the way for authoritarian-populism policies. [xxxvii] The authoritarian manipulation of the common good denies its essence, which is the centrality of human dignity.[xxxviii]
From a comparative perspective, thus, the main challenge of the CGC is to move from the lex to the jus through a constitutional interpretation that considers not only the codified rules but also principles and values. In that challenge, it should be considered that from the perspective of Latin American constitutionalism, the U.S. constitutional system is rooted in the common good.
Suggested citation: José Ignacio Hernández G., Comparative Common Good Constitutionalism: A Latin American Perspective, Int’l J. Const. L. Blog, Dec. 9, 2022, at: http://www.iconnectblog.com/2022/12/comparative-common-good-constitutionalism-a-latin-american-perspective/
[i] Vermeule, Adrian (2022), Common good constitutionalism, Polity: Medford, 1-25.
[ii] Vermeule, Adrian (n 1), 7.
[iii] Vermeule, Adrian (n 1), 37.
[iv] Vermeule, Adrian (n 1), 167.
[v] For an account and responses to some of those critics, see Vermeule, Adriane, and Connor, Casey, “Myth of Common Good Constitutionalism”, 45 Harvard Journal of Law & Public Policy, 103. On October 29, 2022, The Harvard Journal of Law and Public Policy and The Harvard Federalist Society organized a seminar to discuss, from different perspectives, the CGC proposal. For Vermeule’s response, see: “Enriching Legal Theory”, Ius & Iustium, November 4, 2022, retrieved at: https://iusetiustitium.com/enriching-legal-theory/
[vi] There are several dimensions of the common good from the Latin American perspective. We are presenting just a concise introduction based on ongoing research on the topic.
[vii]Torrent, Armando (2017), Fundamentos del Derecho Europeo. Ciencia del Derecho: Derecho Romano-Ius Commune-Derecho Europeo, Madrid: Edisofer, 240-245.
[viii] Murillo Rubiera, Fernando (1992), América y la dignidad del hombre, Madrid: Colecciones Mapfre, 61.
[ix] Labruna, Luigi, “Tra Europa e America Latina; principio giuridici, tradizione romanística e “humanitas” del Diritto”, (2004), in 99 Revista Da Faculdade De Direito, 61.
[x] Filippi, Alberto, “Introducción histórica”, in García Netto, Irma (ed) (2009), Principios generales del Derecho Latinoamericano, Buenos Aires: Editorial Universitaria de Buenos Aires, 21.
[xi] Sánchez-Arcilla Bernal, José (2021), “Las Leyes de Burgos de 1512: una falacia de los Derechos Humanos.
Revisión historiográfica”, in 28 Cuadernos de Historia del Derecho, 41.
[xii] The Independence process started in Venezuela in 1810. At that time, a practical concern was preserving the colonial order and avoiding a constitutional framework degenerating into chaos and disorder. For that purpose, freedom (libertad) was differentiated from debauchery (libertinaje). Or, in other words, the differentiation between virtuous and licentious freedom. Carrera Damas, Germán (2010), Colombia, 1821-1827: Aprender a edificar una República Moderna, Caracas:Fondo Editorial de Humanidades y Educación, Universidad Central de Venezuela, Academia Nacional de la Historia, 49.
[xiii] Brewer-Carías, Allan (1992), Reflexiones sobre la Revolución Americana (1776) y la Revolución Francesa (1789) y sus aportes al constitutionalism moderno, Caracas: Editorial Jurídica Venezolana.
[xiv] The 1811 Cundinamarca Constitution adopted the Catholic Religion as official (Art. 3). It defined the Government as the political organization that assures “domestic tranquility, providing defense against external attacks, promoting the general good and forever ensuring the unity, integrity, freedom, and independence of the province”.
[xv] Liberalism is used here in the sense of a political order based on the separation of power, the supremacy of the Constitution, and the centrality of human rights. See Lorente Sariñena, Marta, “Catholic Constitutionalism in the Hispanic World (1808–1826)”(2013), in 130 Zeitschrift der Savigny-Stiftung für Rechtsgeschichte: Germanistische Abteilung, 326.
[xvi] Gargarella, Rafael (2013), Latin American Constitutionalism, 1810-2010: The Engine Room of the Constitution, Oxford: Oxford University Press, 5-7.
[xvii] Santiago, Alfonso (2002), Bien común y derecho constitucional, Buenos Aires: Editorial Ábalo de Rodolfo Depalma, 125-150.
[xviii] Ibler, Martin (2010), “Derecho administrativo como Derecho constitucional concretizado”, in 2 Respublica, 35. From
[xix] Durán Martínez, Augusto, “La buena administración” (2010), in 1 Estudios de Derecho Administrativo 109.
[xx] Meilán Gil, José Luis, “El paradigma de la buena administración” (2013), in 17 Anuario de la Facultad de Derecho de la Universidad de La Coruña, Número 233.
[xxi] Constitutional Tribunal in the Dominican Republic, ruling N° TC/0202/13.
[xxii] Among many others, see Cassagne, Juan Carlos, “Reflexiones sobre el bien común y el interés público como fines y principios de la actividad estatal” (2021), in 15191 El Derecho 1.
[xxiii] Delpiazzo, Carlos, “Bien común, sociedad y Estado” (2012), in 11 Revista de Derecho de la Universidad de Montevideo 83.
[xxiv] Durán Martínez, Augusto, “El Derecho Administrativo al servicio de la casa común” in Durán Martínez, Augusto (ed) (2017) El Derecho Administrativo al servicio de la casa común, Montevideo: Ediciones Información Jurídica, 42.
[xxv] Cassagne, Juan Carlos (2016), Los grandes principios del Derecho Público (Constitucional y Administrativo), Madrid: Reus, 33.
[xxvi] Stoetzer, O. Carlos (1993), The Organization of American States, Westport: Praeger, 244.
[xxvii] Gros Espiell, Héctor (1995), “La Declaración Americana: raíces conceptuales y políticas en la historia, la filosofía y el derecho americano”, in Derechos humanos y vida internacional, México: Instituto de Investigaciones Jurídicas de la Universidad Autónoma Nacional de México, 13.
[xxviii] Díaz, Álvaro Paúl (2016), “La génesis de la Declaración Americana de los Derechos y Deberes del Hombre y la Relevancia Actual de sus Trabajos Preparatorios”, in XLVII Revista de Derecho 361.
[xxix] Advisory Opinion N° OC-5/85 dated November 13, 1985, paragraph 66.
[xxx] Maritain, Jacques (2012), The person and the common good, Indiana: University of Notre Dame Press, 47. Therefore, the common good can only be achieved within the democratic system, as recognized in the 2001 Inter-American Democratic Charter.
[xxxi] The U.S. is a member state of the Organization of American States. However, the U.S. is not a member state of the American Convention and is not subject to Inter-American Court jurisdiction.
[xxxii] For instance, see the U.S. position in the case Advisory Opinion about the American Declaration (Inter-American Human Rights Court, ruling dated July 4, 1989, n° OC-10/89 paragraph 12).
[xxxiii] There are several similarities between the CGS, and the Inter-American Law applied in Latin America. For instance, the CGC leads to the “triumph” of general principles, a distinctive feature of Latin American Law. Also, it suggests that the subsidiarity principle “implies a positive power”, which coincides with the transformative mandates that the Latin American Administrative has to fulfill. Vermeule (n 1), 148 and 156.
[xxxiv] Sagüés, Néstor, (2016), La Constitución bajo tensión, Querétaro: Instituto de Estudios Constitucionales del Estado de Querétaro, 398.
[xxxv] Colombian Constitutional Court, ruling dated December 5, 2021, n° C-1287/01.
[xxxvi] Mazzuca, Sebastián (2021), Latecomer state formation, New Haven: Yale University Press, 32.
[xxxvii] See my post: José Ignacio Hernández G., “Towards a Concept of Constitutional Authoritarianism: The Venezuelan Experience”, Int’l J. Const. L. Blog, Dec. 14, 2018, at: http://www.iconnectblog.com/2018/12/towards-a-concept-of-constitutional-authoritarianism-the-venezuelan-experience/
[xxxviii] Maritain, Jacques (2012), The person and the common good, Indiana: University of Notre Dame Press, 47.
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