Ius et iustitium, a blog dedicated to legal theory and jurisprudence associated with The Josias, was launched today. This is an exciting and very timely project that, it is hoped, may help reshape the discourse on the nature and function of law in a well-ordered society. Its timeliness is particularly worth mentioning when one considers the current state of these questions.
The blog’s two opening pieces reflect, I think, the kind of space the blog may aspire to be. On the one hand, Adrian Vermeule expands on the theme of common-good constitutionalism with a reading of Justice Harlan’s dissent in the U.S. Supreme Court’s decision in Lochner v. New York. His piece removes the mask that most of us have come to see as the typical face of American law — in either libertarian or progressive makeup — to reveal an older, less individualistic and less skeptical jurisprudential visage. On the other hand, Pat Smith delivers a necessary and sound corrective to Fr. Thomas Crean’s and Prof. Alan Fimister’s treatment, in their worthwhile book Integralism, of the nature of regal and imperial power in the Roman juridical tradition, with an analysis of the Lex Regia and its reception in medieval (mainly English and Spanish) legal thought.
The spectrum that is opened between these two inaugural pieces suggests the scope of the blog’s project. It is necessary to reread the American legal tradition in order to unearth its deep and, until now, mostly ignored ties to that rich and ancient tradition of juridical thought that was centered on notions like the common good, objective right and natural law. As Vermeule’s post shows, this need not be an exercise in grafting alien notions into an allegedly entirely liberalistic American jurisprudence, but of rediscovering what is, to a large extent, already there in its sources, even if sometimes only in nuce.
It is equally necessary to connect that rediscovery of an older mode of legal thinking to its roots: the millennia-old tradition of classical jurisprudence that crystalized in the magnificent edifice of the ius commune, the common law of Christendom. As Smith illustrates in his piece, this tradition is not only rich and fascinating, but in fact contains the principles, categories and notions with which our legal discourse largely operates, and it provides a way to elude and dissipate the modern errors that have led us to our current juridical desert. The recovery and reinvigoration of that tradition can only be in the service of an authentic common-good jurisprudence.
The focus on jurisprudence is also good because, as Smith notes in another post, the ongoing discussion concerning integralism has eventually come to the «fault line» of juridical thought. That is, the critics of integralism are either largely unaware of, or even despise, the Church’s long and rich jurisprudential tradition, to the point where central aspects of the Church’s own self-understanding as a societas perfecta are confused or blithely waved away. As Smith put it, «certain trends in the discourse are attempts to solve fundamentally juridical problems with reference to some other discipline, such as theology, political theory, or political economy».
Integralism is not answered, at least not fully, if its essentially juridical form is not grasped. That is, integralism is a claim in the order of justice, a claim concerning the respective rights of the Church and the State and the scope of those rights and of the jurisdiction they entail over their subjects. The nature of the claim and the terms in which it has historically always been made demand treatment in those same terms — right, title, jurisdiction — and the way in which they relate to and serve the temporal and the supernatural common goods. Political theory, moral theology or political economy, central as they are to many fundamental questions, are ultimately orthogonal to the central integralist claim.
Confusing properly juridical questions through the use of extraneous categories is also a problem in much of modern discourse, especially in the United States, where a great deal of political debate concerns the interpretation of the Constitution and the enactments of courts.
A clear juridical turn is therefore necessary in our discourse, and that is what Ius et iustitium may aspire to supply. I hope to contribute something to it, as well, in my good time.