Joel Alicea (00:17):
Good afternoon. Welcome. I’m Joel Alicea. I’m an assistant professor of law here at the Catholic University of America’s Columbus School of Law, and along with my co-director Kevin Walsh. I’m the co-director of the project on constitutional originalism and the Catholic intellectual tradition or CIT. CIT explores the relationship between the Catholic intellectual tradition and American constitutionalism more broadly through events like this one. Speakers events like this one, but also fellowships on and off campus and other programming. You can learn more by visiting our website, cit.catholic.edu.
(00:53):
We’re going to begin this on-campus event as we do all of our on-campus events with a prayer in the name of the Father and of the Son and of the Holy Spirit. Amen. Our Father who art in heaven, hallowed be thy name. Thy kingdom come, thy will be done on earth as it is in heaven. Give us this day, our daily bread and forgive us our trespasses as we forgive those who trespass against us and lead us not into temptation, but deliver us from evil. In the name of the Father and of the Son and of the Holy Spirit. Amen. Well, we are delighted today to be hosting this event on what is law for? The purpose of law in the classical tradition. That might seem like a very basic question that all of us here at this law school should already know the answer to, but actually it’s a question that is often overlooked. It’s a question that we don’t often pause as a law school community to think about, what is law for? What are we actually doing with law?
(01:50):
We thought that that would be a great topic for exploration today and we have two terrific scholars to discuss that topic. I’m going to give brief introductions of both and then I’ll hand it over to them for their initial comments. I’ll then facilitate a discussion between them and then if we have time, we’ll open it up to questions from you all at the end. So J. Budziszewski to my right is a professor of government and philosophy at the University of Texas Austin. He’s a renowned scholar of natural law theory and virtue ethics and is the author of numerous books, too many for me to list here. I’ll just note a couple of particularly relevant ones here, Written on the Heart: The Case for Natural Law. Which is a great and an accessible text, an introduction for people to the natural law tradition and his commentary on Thomas Aquinas’s Treatise on Law, which I have made use of many times in my own scholarship.
(02:42):
He received his doctorate in political science from Yale and his master’s in undergraduate degrees from the University of South Florida. To my left Melissa Moschella, is associate professor of philosophy here at CUA. Where her teaching and research focused on natural law, biomedical ethics, and the moral and political status of the family. She’s the author of To Whom Do Children Belong?: Parental Rights, Civic Education, and Children’s Autonomy. She earned her doctorate in political philosophy from Princeton University, her licencia in philosophy from the Pontificia University of the Holy Cross in Rome and her undergraduate degree from Harvard College. So we have two, as I said, very distinguished scholars to discuss this topic today and will begin with Professor Budziszewski. Thank you.
J. Budziszewski (03:22):
What is law for? According to the classical definition, law is an ordinance of reason for the common good made by competent public authority and made known. Now, any enactment that lacks any of these qualities, for example, one that isn’t directed to the common good is by this standard a sort of a fraud, an imposter, an act of violence Augustine says. Well, there you have it. What is law for? The answer, the common good, end of talk. Well, not the end of the talk. I doubt that we give enough attention to what we mean by the common good, if we say that the purpose of the law is the common good. One reason for this fact is that the common good comes in different flavors. A good may be shared or common. That’s the meaning of it’s being common, that it’s shared. It may be shared or common in different ways and to different degrees.
(04:16):
Often people call a good common in the extremely weak sense that it’s something that’s good for everyone. For example, wealth or aggregate wealth might be called by somebody a common good. Merely because we all have material needs, but this is a misleading way to use the word common because we don’t enjoy community in this good. I might get more wealth by taking it away from you, and if I have it, you don’t have it. So let’s try to think more clearly. First, a good might be common in the stronger sense that it excludes competition. We can compete over pie, but we can’t compete over literacy because my becoming more literate doesn’t make you less literate. Second and stronger, a good may be common in the sense that no one is prevented from enjoying it. The comradeship of a healthy family is a common good in this sense, common to the members of the family. Although this wouldn’t apply to an unhealthy family that belittles some of its members and ostracizes them.
(05:27):
A bridge is a common good in this sense. Economists like that example, but it wouldn’t be if I set up a tall gate. And even though literacy is a common good in this sense, it wouldn’t be if I used force to prevent you from learning to read. Third and still stronger, a good may be common in the sense that if anyone enjoys it, then no one could even be prevented from enjoying it. National security is a common good in this sense. If invaders are kept out of the country for me, well, they’re also kept out of the country for you obviously. Finally, a good may be common in the extremely strong sense that there couldn’t even be a rational motive for preventing someone from enjoying it because even if I don’t have it, I gain from the fact that you have it.
(06:19):
The virtues are like this, especially justice is like this. You might have greater virtue than I do. You might be more just than I do, but if that’s the case, you didn’t get your justice by taking it from me. You didn’t become a more virtuous person by making me less, and moreover, your virtue makes me better off too. I’m the gainer. Now, you may have noticed from my examples that the question of whether or not a good is common presents some paradoxes. For example, whether wealth does exclude competition depends on social arrangements, doesn’t it? If I can become wealthier only at your expense, then we compete. But if there are ways for us to cooperate so that we both become wealthier without making anyone poorer, than perhaps to some degree wealth might be a common good after all. Deepening the paradox, is the fact that the private and the common may be complimentary.
(07:20):
According to Thomas Aquinas, the very reason for the institution of private property is that it serves the common good. Mind you, the property isn’t common, the property is private, but the institution whereby it’s possible for me to have it serves the common good. Well, how so? First, each person takes better care of his own property than of what belongs to everyone at once. Second, it’s easier to pinpoint responsibility if each person is charged with caring for particular things. Makes sense. And third, when goods are divided so that each person has something of his own, there are also fewer quarrels. All of this redounds to the common good since St. Thomas’s time, other ways in which private property can contribute to the common good have also been discovered. Now, that’s one paradox. Here’s another paradox. As I said, you and I can’t have a rational motive for competing over virtue.
(08:19):
If I’m more virtuous than you are, I didn’t get it from you. But we can have irrational motives for competing over it, can’t we? For example, I may envy you because you’re more courageous than I am. Or even though we can’t really compete over courage per se, we can certainly compete in reputation for courage and I may envy you that you have a greater reputation for it than I do. So something that has no room for rivalry in itself and in one sense becomes a motive for rivalry in another sense. So long as envy does come into the picture, any good at all it seems can give rise to rivalry. Even a common good in this sense can give rise to irrational rivalry. So let’s call this the paradox of envy.
(09:11):
Now, the paradox of envy has political repercussions too. We said before that if the country is invaded for anyone, then it’s invaded for everyone. So in that sense, there’s no possibility of competition. Yet, although citizens can’t be unequally protected from invasion per se. They may be unequally protected from the burdens of preventing it or they may be unequally protected from the burdens that result from the conflict. They may fight with each other to shift the burdens of conscription. “I want you to be drafted. I don’t want to be drafted.” Or the burdens of taxation or the burdens of living in a dangerous locale to shift those onto others. I think the only defense against the paradox of envy and therefore ultimately the only true defense, the only true protection of the common good is for each person to regard the others as friends.
(10:12):
Now, I hope that doesn’t sound like a rosy tinted fairytale. I’m going to get to that criticism, but I think we need to regard ourselves as fellow members of a partnership in a good and virtuous life. One in which not only can each of us flourish individually, but also each of us can contribute to the flourishing, to the wellbeing of all of the others. We already are friends just insofar as we form a community, we’re potential friends insofar as we aspire to. The very prevalence of this attitude and of the conditions that make this attitude possible are also common goods. Now, I freely admit that this isn’t ideal, but you have to believe in the coherency of the ideal before you can take any steps toward the amelioration of the messy reality.
(11:10):
We hear a lot from so-called rational egoists, who don’t believe in the ideal. They think the individual good, the private good is really all there is. The common good is a myth, and I shouldn’t be concerned with that anyway, I’m looking out for number one. Well, these so-called rational egoists I think may be genuinely egoist, but they’re not genuinely rational. Suppose you counseled a mother that it would be foolish for her to risk her life by dashing in front of a speeding truck to push her child to safety. “You do that and you’re going to die. You can’t experience any good. You can’t experience the delight of raising your child anymore. That’s irrational.” Suppose you told her that even though the child’s death would sadden her, she could always have another one. Well, people who say such things have never loved. In the first place, another child is not this child.
(12:06):
In the second place, the death of the mother’s child because of her failure to act would be a greater loss to her than her own death would be. We glibly speak of looking out for number one, but the mother no longer experiences herself as number one. And if it’s really true that we are social and political beings, as the classical writers all thought that we can’t flourish except in fellowship with others. Then in that sense too, we aren’t just number one. The mother no longer experiences herself that way, and she’s right not to. As social beings, this means partly that human experience is open to love. The good life is only good for us when we throw in our lot with others who can enjoy it with us. Openness to love is the only satisfying defense against the supposed conflict between private and common good. It’s the only thing that can convert the common good from an abstraction into a lived reality. Now, the best love, of course, is supernatural charity.
(13:18):
There’s a problem here, obviously that’s a gift of grace. It’s not an attainment, it’s not an achievement. It’s not something I can just whip myself up into by the exercise of my natural powers or self-discipline. It would be too much to demand that everyone in the civil community have charity toward his neighbors. I don’t think that we can demand that even so we can recommend it. We can recommend to our neighbors to open themselves to the grace of the God who bestows it. Besides, even everyday love. I’m not talking about supernatural charity now, but natural fellow feeling for the other members of the community. Even that can go a long way because whenever individuals bear burdens for the sake of the common good, they do it for love. For what other reason would they do it? Not for the sake of an abstraction. Friends take risks for their friends. Parents take risks for their families. Doctors, soldiers, policemen take risks for their neighbors.
(14:18):
This doesn’t mean that individuals are just tools of the collectivity, that they’re just fingers on the hand of the state. Because ultimately the common good of the community is for the sake of the good of all of those individuals who make it up. But what it does mean is that all those individuals regard themselves as friends. Now, you might say that my solution such as it is, is more effective in personal friendship than it is in civic friendship because civic friendship is less intense and it’s more watery. Well, I agree, but yet to the degree that a community of friendship is a compound of many individual friendships. If you think of being a fellow citizen as just being friends with everybody else at once, that’s all pretty watery. Yes, but an actual community like a city, a political community is going to be lots of little friendships united in greater friendships between those friendships and partnerships between those partnerships.
(15:24):
It’s an association of associations and that can be pretty thick. So personal friendship can be more effective than you might think. And even think about it, there’s another way to view it. Even a soldier who has doubts about the Roman maxim, “It is sweet and fitting to die for your country.” May not hesitate to throw himself on a grenade in order to save his buddies. And even today, despite the glaring disorder of our political culture, despite the prevalence of the each man for himself, I’m looking out for number one mentality. Most people would swiftly agree If an elderly next door neighbor asked for help in changing a ceiling light bulb, they wouldn’t ask, “Well, first, tell me how you’re going to vote in the next election, or how much are you going to pay me?” Moreover, there are approaches to living together that can make the approach that I’m suggesting still more effective.
(16:18):
That’s why Aristotle said, it seems so strange to our modern way of thinking, but this is why he said, and I think he was right, that good legislators give even more attention to friendship among the citizens than they do to justice among the citizens. In the first place, if the citizens are friends, this is a no-brainer. They will want to do each other justice, but in the second place, and this is deeper, if they’re friends, they’re going to rise above justice. They’re going to do things for each other without keeping score, without thinking, “Am I getting back the same amount?” They won’t always be checking up on each other to make sure they’re getting what’s justly coming to them. The most important element of the common good therefore, is that all members of the community regard themselves as potentially friends, and by thinking this way, they go a long way toward bringing that friendship into existence.
(17:17):
So to go back to the beginning, you remember I said that in the classical view, and I was taking this straight from Thomas Aquinas, that a true law must be among other things for the common good. Well, he’s not merely saying that good legislators will take good care of the city water supply or try to prevent disease, although of course they’ll do that too. He means chiefly that by the discipline of the laws, they will habituate the citizens to a communion of friendship with each other. Now, someone might suspect that because I stress the aspiration to civic friendship and the importance of living in such a way is to make it possible, that I must have a really rosy view of political conflict. It’s not to be taken very seriously.
(18:07):
Actually, my view of political conflict is pretty dire. I don’t think that most of the edicts these days that are contrary to the common good and they’re all over, I don’t think that they mostly arise from mere carelessness or from mere haste in enactment. I think a lot of these edicts contrary to common good are frankly made in bad faith. For example, during the pandemic, we saw this, regulations that were made that weren’t necessary for health but were made in consistent, considered hostility to religious worship under the guise of concern for public health. Moreover, there’s an increasing tendency not only to do whatever it takes to attain office today, but to try to block the very expression of views with which one disagrees. Which seems insane under any view of what laws ought to be passed because we have to deliberate about these things in order to do them right. So how do we approach political and legal disorder? Well, I think we should approach it the way that doctors approach disease.
(19:20):
Even if bodily health will never be perfectly achieved. Still, in order to ameliorate disease, you have to know what health is. You can’t just define it as the absence of disease. You have to have some positive conception of what it is that you’re aiming at. In the same way, even if civic friendship will never be fully attained. Still in order to ameliorate enmity, in order to lay some of the steps that may one day lead to something more nearly resembling friendship, one has to know what friendship is. Legal scholars sometimes use the term realism. International relations scholars sometimes use the term realism this way too, for ignoring moral considerations. That’s not realistic. It’s not realistic to ignore one part of reality, and frankly, the reality is that humans are moral beings even when they’re behaving immorally.
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But why are we so divided today? Some people say, “Well, it’s because of past injustices.” But they’ve always been past injustices. I think a deeper reason is that our elites, our opinion forming classes and lawmaking classes and administrators are increasingly skeptical of any difference between the just and the unjust. Somebody might say, “But don’t people live differently these days? These people live this way, these people live that way.” Well, yes, but people have always lived differently to some degree. The reason why we panic over these matters today and are stampeded into relativism is that fewer and fewer people believe that a good way to live can be found out by reasoning. They don’t know that it’s even possible to reason about these things. They think it’s just a matter of feelings. This is my good, that’s your good. If I don’t believe in reasoning my way to the truth, then my opinion about how to live isn’t even an opinion about how to live.
(21:30):
Think about it because after all, an opinion is an opinion about what is true. A feeling isn’t an opinion. An opinion has reference to the truth, even if mistaken, it is an opinion about what is true. If we deny this, then how can we not be divided? Can we get from here to there? Well, let me suggest what some of the steps toward getting there would be. I’m going to discuss some of the steps as to our view of reality, as to our moral life, as to our intellectual life and as to our political life. As to our view of reality, I think we have to be willing to believe that there really is such a thing as the common good and that there are such things as objective goods and evils, and that the human moral intellect can get a grip on these things.
(22:32):
As to our moral life, I think we have to give up the shallow idea that virtue… We talk about virtue signaling today, and that means doing politically correct things. I think we have to give up the shallow idea that virtue simply means political correctness. A person may hold the approved opinions, he may even hold true opinions and yet be gravely deficient in the virtues of justice, courage, temperance, prudence, what used to be called the cardinal virtues. Comes from a Latin word, meaning a hinge or a hanging point, because all the other virtues hang from them, they depend on them. As to our intellectual life, we have to be willing to reason together. We must not be offended by reasonable questions or by reasonable answers, and we must reasonably discuss our disagreements.
(23:24):
You share your respect for somebody by taking him seriously enough to explain to him calmly why you think his opinion is mistaken, not just by blowing it off. We must also stop treating feelings as automatically valid. “I just think…” “Well, I just feel…” Those aren’t reasons. We have to do better than that. As to our political life, we must repent that we ever said in our hearts, “Let us do evil so that good will result.” We must resolve never to do this again and we must begin again to believe all of the other things that have to be believed in order for such a resolution even to make sense. Now, it may be objected that doing all of this would require a kind of conversion, but what of that? When everything easy fails, you have to do what’s hard. Thank you.
Joel Alicea (24:42):
Pastor Moschella.
Melissa Moschella (24:46):
Well, thank you so much. I want to focus my comments on how the rule of law embodies respect for citizens as rational agents, and I’ll argue that it does this in at least two broad ways. First, the rule of law provides stability and predictability that enables citizens to direct their lives in pursuit of various goods, thus facilitating their exercise of agency. And second law understood as a dictative reason for the common good, governs people not by force or will, but by giving them reasons for action that they can understand and adopt as such. It therefore respects them by guiding them as rational agents rather than by say getting people to behave in a certain way through nudges that work primarily through a manipulation of incentives. So to highlight how the stability and predictability of the rule of law is important for facilitating our exercise of rational agency to direct our lives. I’d like to start by telling you a story from the pandemic.
(26:02):
So the story is about a Catholic couple preparing to marry in the fall of 2020, the church where they would like to marry, it’s located in Washington DC. Whose mayor had recently ordered that anyone traveling from certain states deemed high risk because of high case counts would be required to quarantine for 14 days before being able to go out and about in the district. And among those high risk states was Illinois, home to the groom’s family members who of course wanted to attend the wedding. So the couple considered getting married at a church in Maryland, which didn’t at least at the time have any such quarantine requirements for travelers. But knowing that the quarantine rules in either jurisdiction might change at any time, the couple decide to wait before settling on a church for the wedding. And that also means they have to wait before applying for a marriage license from the state because the license has to be granted by the appropriate jurisdiction. And an internet search revealed that there was no urgency to apply for the license because presumably it could be obtained within a day or two.
(27:15):
Fast-forward to the week before the wedding. The couple have settled on the Maryland Church seeing no end in sight to the DC’s quarantine order and busy with lots of pre-wedding planning details, they haven’t yet obtained the marriage license. So they go to try to obtain it and the groom discovers to his great chagrin that the county offices are closed to the public due to the pandemic and that they are processing marriage licenses only by mail, which can take at least a month. He asks if they can expedite the process, can he put the papers under the door or something like that, right? No, no exceptions made regardless of the circumstances. So then he calls the neighboring Anne Arundel County Courthouse and finds that there he can leave the application in a Dropbox at the courthouse. It will then be processed within 24 hours, valid for another 24 hours, and that’s what he decides to do.
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However, there’s a catch, in Maryland once marriage license must be granted, not merely by the state of Maryland but by the county where the marriage is going to occur. And the church is not in Anne Arundel County, it’s in Prince George’s County. So the groom drops off the completed application on Tuesday. The couple pick up the license and perform their civil marriage at the courthouse on Thursday, and then the civil marriage is canonically convalidated by the Catholic Church at their real wedding on Saturday. Now, the story is not imaginary, as you might have guessed. This is actually the story of my own wedding. And while everything turned out in the end just fine, thankfully, and now, it can be told humorously in hindsight. I tell the story to help illustrate why the rule of law matters because the story shows in a small, somewhat humorous way how departures from the rule of law, regardless of whether those departures are justified or not, can significantly disrupt our lives.
(29:29):
And while the example of my marriage is humorous in hindsight, countless other stories from these past pandemic years, many without happy endings could be told about the difficulties of making and carrying out plans in any area of life when the relevant rules of the game might be changed at any moment. For instance, people often found themselves having to wonder, “Will the children be able to attend school this week or this month or this year or not?” “Will my business be allowed to be open or not? And if not, for how long?” “Will I lose my job if my company shuts down?” “Will I be able to travel to another state or another country three weeks from now, three months from now? And what requirements will I need to comply with to do so?” “Will I be able to hold a gathering of people personal or professional in the next six months or in the next year?”
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“How many people will I be able to invite? What require requirements will be imposed on the guests and what happens if the requirements change the week or the day before the scheduled gathering?” These are just a few of the myriad uncertainties that complicated our lives, frustrated our plans, and caused economic and emotional hardships over the years of the pandemic. And they helped to show in a very palpable way why the rule of law, which is characterized in part by its relative stability and predictability is so important for human flourishing. Now, before considering in greater depths why the rule of law matters. I want to just step back for a moment to define the term a little bit more clearly, the distinction between rule of law and rule of men and the claim that the rule of law is a crucial feature of just government, goes back to the ancient Greeks. And was reiterated and developed throughout the medieval and modern eras by a variety of thinkers, including Thomas Aquinas and John Locke.
(31:27):
But perhaps one of the most fully developed recent statements of the formal requirements of the rule of law can be found in Lon Fuller’s Classic, the Morality of Law. Where he outlines eight characteristics of the rule of law, which I summarize here. First, laws are general rules that provide a consistent standard of action, not judgments made on a case by case basis. Second, laws have to be promulgated. In other words, they need to be publicized to the people who are supposed to follow them. Third, laws have to be prospective, not retroactive. Fourth, they should have clarity. Sufficiently clear to know when it is that you are or are not following them. Fifth, they should be coherent, not having contradictory or incompatible provisions. Sixth, laws shouldn’t demand the impossible. Seventh, they should be relatively stable over time. And finally, eighth official action should be congruent with the law. In other words, the laws themselves should be made in accordance with laws and lawgivers should have to follow the laws.
(32:38):
Now, this concept of the rule of law applies not only to particular laws and their administration, but to the system of government as a whole. It implies in other words, that government itself be established and governed by a set of laws, a constitution. While the rule of law is no guarantee of justice. For of course, laws duly enacted and possessing all the formal characteristics outlined by Fuller could still be seriously unjust. Nonetheless, the formal and procedural requirements of the rule of law do in and of themselves facilitate justice in the common good. First, as already noted, the rule of law introduces clarity, stability, and predictability into human affairs. And this is important because all of the pursuits that contribute to our flourishing as individuals and communities are carried out over time and thus require a certain degree of clarity and stability in the rules and regulations that affect them.
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As John Finnis explains, in Natural Law and Natural Rights, individuals can only be selves, that is have the dignity of being responsible agents if they’re not made to live their lives for the convenience of others, but are allowed and assisted to create a subsisting identity across a lifetime. And the stability and predictability of laws create the conditions within which we can exercise that agency. Second, and relatedly, law imposes self-discipline on those in authority by limiting the processes by which laws can be enacted and executed. This self-discipline engenders reciprocity, fairness and respect between ruler and ruled, insofar as legal norms and procedures bind rulers to their end of the bargain. In this way, Finnis explains that there is intrinsic value to the rule of law because it, “Is based on the notion that a certain quality of interaction between ruler and ruled involving reciprocity and procedural fairness is very valuable for its own sake.”
(34:46):
“It’s not merely a means to other social ends and may not lightly be sacrificed for such other ends.” In an essay called Reason, freedom and the Rule of Law, Robert George unpacks the idea that the rule of law embodies respect between ruler and ruled, arguing that this respect is required by the dignity of human beings as rational agents. He does this by contrasting the ways in which farmers govern their livestock with the way in which rulers should govern those under their rule. Farmers use various methods to literally or figuratively poke and prod the animals to behave as they want them to. And if these methods are not cruel, this way of treating livestock seems morally acceptable. Indeed, it would be somewhat silly for a farmer to attempt to explain to the cows or the chickens why they ought to behave in certain ways. For animals are incapable of understanding and acting for reasons.
(35:51):
Humans, however, have the capacity to understand and act for reasons, and we can recognize certain things, certain goods. Like health or knowledge or friendship or religion as part of our fulfillment. As human beings, we can make free choices in pursuit of such goods both individually and collectively. We can, in other words, deliberate and choose, and this makes us rational agents who are morally responsible for our actions. As rational agents, we ought not to be ruled through poking and prodding the way that farmers rule their livestock. Instead, humans ought to be ruled in ways that respect our dignity as rational agents. And this requires that those in authority abide by the principles of the rule of law. Now, to fully understand how the rule of law embodies respect for the rational agency of those under its authority, it’s also worth noting another characteristic of law, the inherent connection between law and reason.
(36:58):
And this brings us beyond Fuller’s formal and procedural account of law to a more substantive one. Thomas Aquinas provides the classic definition of law as an ordinance of reason for the common good, made by him who has care of the community and promulgated. This means that laws are not the arbitrary or self-interested dictates of a ruler’s will, but instead that the moral force of law comes from its reasonableness, which is inherently tied to its connection to the common good. And given our nature as social beings and our inability to flourish in isolation, practical reason directs us to promote the common good of our communities. So promotion of the common good is not something extrinsic to our own good, it’s intrinsic to our own good. Following laws that are genuine ordinances of reason for the common good respects our dignity as rational agents because we can understand the reason behind such laws and adopt that reason or those reasons behind the laws as our own. Recognizing that we have good reason to try to promote the common good and that the law is instructing us in how to do so.
(38:19):
Ideally, therefore, law governs not primarily through force or manipulation or threat of punishment, but by providing genuine reasons for action. Since law’s purpose is to serve the common good, there may of course be exceptional circumstances in which the needs of the common good justify departures temporarily from the rule of law. Indeed, most constitutions include clauses that allow executive officials to rule by decree in case of emergency bypassing the usual procedures for making laws. The pandemic related restrictions discussed earlier, stay-at-home orders, business, church and school closures, limitations on gatherings, mask and vaccine mandates and so on. Were mostly rules imposed by executive officials under emergency powers, allowing them to respond quickly to a new virus that threatened the common good. And while there are ongoing debates about the prudence and efficacy of the various pandemic policies, many would argue that at least initially the pandemic may have warranted some exercise of emergency powers.
(39:32):
Nonetheless, living for an extended period under emergency rule illustrates how departures from the regularity of the rule of law do inflict real costs on the common good. Besides making it difficult or impossible for individuals in groups to make and carry out plans in almost any area of life, the costs include deeper, less obvious harms as well. Such executive rulemaking can undermine the sense of reciprocity and respect between ruler and ruled leading significant segments of society to feel that they are being poked and prodded into conformity like livestock. Rather than being respected as rational agents, whose judgments and concerns merit consideration even if they differ from those of elites. For instance, as was already mentioned, many religious believers felt that pandemic restrictions on communal worship reflected a failure of mostly non-religious elites to appreciate the essential role of worship in the lives of believers. Government officials deemed religious practice non-essential, banning religious services even outdoors or in very large spaces with limited participants. While at the same time allowing businesses like liquor stores to remain open. Such double standards exhibited a lack of logic and disrespected the judgments and concerns of religious citizens.
(40:53):
More generally, as time passed and the need for continued restrictions became more questionable, many felt that they were forced to abide by arbitrary rules and that they were being treated as if they were incapable of making their own responsible judgments about how to balance competing goods, the preservation of health, along with other competing goods like social interaction, work or the education of children. At one point, for example, DC regulations required that here on campus students had to wear a mask during class and in most university buildings, but not in the campus chapels, and not if they went across the street to the Starbucks or to the bookstore. Likewise, even after it became clear that vaccination doesn’t actually prevent people from being infected with or spreading Covid-19, many jurisdictions continued to require proof of vaccination to enter a variety of public businesses. Such incoherent rules profoundly harm the common good by breeding distrust and resentment toward the government and insulting the rational agency of citizens.
(42:02):
Now, these lessons from the pandemic serve as powerful reminders that though emergency powers are sometimes justified, departures from the rule of law and from standard legislative procedures should be rare and of relatively short duration. The deliberations and delays of enacting legislation may tempt government officials to extend emergency powers or push the limits of executive authority in other ways. But this temptation needs to be resisted. For the inefficiency of legislative processes and constitutional checks and balances needs to be understood not as a bug, but as a feature of the rule of law. Promoting the legal stability and predictability that are essential for human flourishing and ensuring at least in principle, that the legitimate competing interests and judgments of diverse groups will be considered. Respecting these constitutional limits not only makes it more likely that laws will promote a just distribution of the benefits and burdens of common life, but also contributes to the common good by fostering and embodying the mutual respect among citizens and between ruler and ruled, that is essential for a healthy republic. Thank you.
Joel Alicea (43:22):
Well, thank you both. I had in preparing for today written up a few questions I wanted to ask you, and I might still get to them, but just listening to the two of you, I’ve been prompted to ask a different question. Both of you touched on the pandemic and how that is an interesting case study for thinking about the purpose of law in the classical tradition, how to think about the purpose of law in general. And I was struck by that, that you both thought about the pandemic as such a good example for thinking through this question. It seemed to me that one of the things that pandemic highlighted was the profound level of disagreement within American society on fundamental questions relating to the common good, even fundamental questions about what the common good is. And that just puts me in mind of John Ross’s dilemma about the fact of reasonable pluralism. Which in a free society like ours, you’re going to have a diversity of viewpoints that will arise on fundamental questions of ethics and about what the common good is.
(44:33):
None of that defeats the point that the common good is an objective thing, that it exists apart from whether you and I disagree about what it is. But it does pose perhaps a challenge to thinking about law in the classical tradition if a particular society is riven with disagreement about what the common good is or how to achieve it. And you touched on this a little bit, Jay, in your remarks about civic friendship and how that could in some ways help address this, but I just want to ask you both as a follow-up to your remarks, to reflect a little bit on the extent to which deep disagreement in a society and persistent disagreement about both what the common good is and how to achieve it poses a challenge. A problem for law, and how to enact law that serves the common good. Given that we can’t seem to agree on even the basic terms of how to have that conversation about making law to serve the common good.
J. Budziszewski (45:35):
Well, I think that you’ve helped here by framing this as two questions and not one. Disagreements about the nature of the common good and also disagreements about how to talk about it. As to what it is, it’s hard to see offhand. I mean, at first glance, why people on different sides of the political spectrum should have disagreed as radically as they often did. I mean, people of all sorts value health, people of all sorts value being able to see their friends and so forth. However, one of the most clear and pervasive disagreements though was that one side tended always to prioritize on to an almost hysterical degree, I think, considerations of bodily health all over considerations, including spiritual considerations. And even at the expense of social considerations, an awful lot of people were depressed.
(46:36):
This is a health issue too. People were depressed during the pandemic. They couldn’t see their friends. They were drinking to excess, they were medicating themselves with various kinds of substances and suicide rates went up. Now, a lot of this is controversial because people say death’s attributable to the pandemic. How do you know whether they were attributable to the pandemic? If somebody has the disease and the disease is what killed them, that’s one thing. If they had the disease but something else killed them, how are you going to count that? If they had the disease and it didn’t kill them, but on the other hand, they committed suicide because they were depressed because of the health measures that have been taken. There does seem to be though a very great gap between the number of deaths that are directly attributable to the disease and the number of deaths. I think that’s one substantive disagreement here and that’s difficult to deal with.
(47:34):
Now, as to how we talk about it, this goes straight to the issue of friendship. There were tendencies to demonize people who disagreed. There were tendencies to try to suppress the expression of views with which one disagreed. Even if they were by reputable health scholars, medical researchers and so forth, but that weren’t within the bubble. This enormously difficult too, so that shouldn’t have happened.
Melissa Moschella (48:14):
Yeah. I think when we’re talking about disagreements about the common good, one distinction that I find really helpful is thinking about the common good in kind of two layers, if you will. So what you might call the common good in the fullest sense, which includes civic friendship and which includes a concern for the overall flourishing of all the members of society in a very direct way. But then I think there’s a second sense in which we can talk about the common good, in which we’re referring specifically to that aspect of the common good over which the coercive powers of the state have jurisdiction. And I think, that’s the subset of the first, but not the whole of the first. When we’re talking about the purpose of political community overall, it’s the common good in the full-bodied sense. But the responsibility to achieve the common good in the full-bodied sense is distributed across society in a subsidiary way.
(49:27):
I mean, this gets to what Jay was saying about the political community being a community of communities or an association of associations. The units of the political community are the smaller communities, the more primary communities that we belong to. Our families, our neighborhoods, our churches, our places of work, our schools, and that those smaller units have their responsibility within their own sphere for the overall flourishing of their members or their flourishing with regard to their particular ends as institutions. And that they also have to have a view toward the good of the whole political community as well in the way that they pursue their own flourishing.
(50:07):
Whereas there’s a much more limited responsibility that the government has jurisdiction over, in terms of its use of law and force to coerce people for the common good. And I think that more limited aspect of the common good needs to be expressed in a way that reflects the subsidiary. So if you get some more common formulations of it, in recent years have talked about the common good as being the set of conditions that enables the individuals and groups that make up the political community to foster their own or to pursue their own flourishing. So it’s a kind of second order thing where the political community is kind of responsible for the basic conditions that enable the smaller units, the smaller groups, and the individuals that make it up to pursue their own flourishing. And that allows for a great deal of pluralism. And that’s part of why when you get to situations like the pandemic, it’s very problematic when those situations and how to respond in very difficult situations like that.
(51:25):
When that gets put onto or treated as if it were a technical question that can be solved through technocratic measures, “Well, here’s the graph and this tells us what to do.” And a technical question that then should be just taken care of by bureaucratic bodies, run by technocrats instead of by democratic deliberation. Because what happens there is that then you pretend as if the debate is just about the most effective means to achieve your end, and forget that the debate is actually a debate about how we prioritize competing ends. It’s really a value debate, not a technical debate. And when you recognize that it’s a value debate, you recognize, “Well, reasonable people can reasonably have different orders of priorities in terms of how much they’re willing to risk health for the sake of work or education or friendship or other goods and so on.”
(52:29):
Recognizing that this is a value debate and recognizing the subsidiary nature of the common good and the limited extent to which government can force people into its own view of how to pursue the common good, would I think have allowed for much more respect for freedom for people to individually make their own considered decisions about how much risk they’re willing to take in order to pursue other goods in life, even in the midst of a pandemic. And I mean, actually look at some of the research that’s been done afterwards. It’s very interesting that a lot of the curves about case counts falling and so on, the case counts almost always on the graphs start to fall before the restrictions are put in place.
(53:19):
In other words, people are not stupid. So a lot of the way the restrictions worked is they presumed a model of human beings as zombies, that wouldn’t change their behavior in the face of a clear threat to them. Whereas people aren’t actually like that. That’s why countries like Sweden that didn’t do kind of mandatory lockdowns, but just advised people ended up in the long run with pretty much the same results or better. Because people are rational agents and the government spoke to them as rational agents, made suggestions and then allowed people to make their own judgements.
J. Budziszewski (53:52):
Please, just one more small point. I agree with everything Melissa said, and I just want to add to this point about the technocratic approach to this. We tend to have an illusion about the way that science works. We think that science isn’t political and we think that politics isn’t reasonable, you can have a rational discussion about political matters, even about evaluative judgments. And science has its own politics, it has its own opinion bubbles, it has its own power plays and so forth. There was a great deal of naivete about that during the pandemic. People would say, “Science says.” Science never says, there are some scientists who say some things. Just like there may be some politicians who say some things, and these things have to be debated in terms of the total picture.
Joel Alicea (54:47):
What’s really interesting about both of your sets of answers is that in response to this problem of reasonable pluralism, both of you seem to be saying that part of the response to that is actually to allow for structures that allow for a greater expression actually of that kind of pluralism. You, Jay, in making your point about not suppressing potentially dissenting viewpoints. And you, Melissa, in the point about subsidiary in care for the common good. That actually both of those approaches are ways of dealing with reasonable pluralism, even though they result in the expression of more disagreement in a way, which is very interesting.
J. Budziszewski (55:25):
But they’re necessary to make disagreement fruitful. Disagreement isn’t a bad thing, but you have to take steps to make it fruitful.
Joel Alicea (55:34):
We only have a few minutes. I can keep asking questions, but I want to see if anyone in the audience has any questions. I have one question over here.
Speaker 4 (55:50):
First of all, thank you so much for your very interesting discussion. I’m trying to wrap my head around this, and I’m thinking about this tension between the sort of relationship. The civic friendship is a relationship, a social aspect of the common good, which is intention with an individualistic perspective. And we discussed it in terms of what happened after the pandemic. And I’m thinking about how do we discuss this around issues of gun in schools and mass shootings today. Even here, we had a little bit of a threat or scare. And I think in terms of the politics, perhaps one way of thinking about it is from a liberal perspective.
(56:30):
I’m thinking of Cornel West, who would say, “There could be no love without sacrifice.” I think the sacrifice implies this relationship. And from a more conservative perspective, I’m thinking of Mary Ann Glendon who would speak of rights, but then also responsibility. So we have a responsibility, that’s a social aspect. So I’m wondering if you could speak as to this tension between the societal version of common good with the individualistic culture and in a particular example applied to the issue of guns and school safety.
J. Budziszewski (57:00):
Well, I’m not an individualist. I think persons are vastly important. The community as a whole, there’s a certain conception of the common good, which isn’t mine. I don’t think Melissa’s either, which holds that the individual is only sort of a finger on the body politic. That the real being, the real person, you might say is the state or the society and we’re just cogs. We don’t believe that. Human, individual, rational substances are the persons here. We are the persons, and the common good is for our sake. Now, how is this different from the way an individualist looks at it? We understand the individual person as a social being.
(57:44):
It is unrealistic. It isn’t even a view that is pro the individual’s good, to treat his good in isolation from the good of others. We never think of ourselves that way. We are always involved in social relationships. I couldn’t imagine pursuing my own good without regard to my wife, without regard to the good of my children, my grandchildren. It’s unimaginable, or even for that matter, my students. So the ultra individualistic way is a distortion of the nature of the individual human person, rather than a proper expression of it, in my view. [inaudible 00:58:25]
Melissa Moschella (58:25):
No, I agree. And I think when it comes to the particular question of gun control laws and so on, I think there certainly individuals can be called upon to make sacrifices for the common good. Sacrifices at one level, which if it’s truly for the common good, also redounds to the benefit of the individual himself or herself, because we have a responsibility for the common good and contributing to the common good is good for us as individuals. But what that means in terms of particular policies, I think is very tricky question empirically. In terms of, well, which policies will actually better promote the common good? And I don’t think I have the expertise to speak to that in particular.
Joel Alicea (59:13):
Well, I think we’re basically out of time, so we should probably wrap it up, but I’d ask you to please join me in thanking our two speakers for this great discussion on the common good. Thank you.
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