Michael P. Foran (University of Glasgow) has posted Common Law and The Common Good on SSRN. Here is the abstract:
This paper will be presented at the festschrift for TRS Allan, a mentor and friend. The last few years have seen a renaissance of thinking about the common good amongst constitutional scholars working within the common law world. Interestingly however, analysis of the common good remains grounded primarily within the classic legal tradition, itself rooted in civilian jurisprudence. The connection between the common good and the common law tradition, particularly common law constitutionalism, remains somewhat underexplored. Drawing on the work of TRS Allan, I hope to bridge some of this divide in emphasis by exploring the role of the common law within the classical natural law tradition. However, I also wish to suggest that neutrality on questions of the good life, a hallmark of Dworkin’s political liberalism, is not sustainable in light of the commitment, embraced by both him and Allan, that law must serve the public good. If law is to be a public asset – a common good – it cannot refuse to take a stand on the flourishing of legal subjects. Indeed, it manifestly does not. To constitute a defensible scheme of justice, law must be justified as a plausible attempt at the common good, intended to improve the lives of its subjects by facilitating their flourishing among a community of moral equals. With this in mind, common good constitutionalism presents a challenge and a rallying cry to anti-positivists, encouraging them to follow through on their commitment to the idea that the rule of law demands good government in the best interests of the governed. To do this, we must think seriously about what those interests require, paying sufficient attention to the specific context and institutional history of our law. Good government cannot be neutral on the quality of the lives of subjects any more than it can be neutral on the nature and scope of fundamental rights.
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