Vermeule, Calleja, Proper Paternalism, and the Restoration of the Common Good

This is the third (recall here; and here) in an open-ended series of posts prompted by Adrian Vermeule’s (2022) Common Good Constitutionalism (Polity). One peculiar feature of the book is that the endnotes point toward a more radical position than the main argument in the body of the text.

In today’s post I want to illustrate the claim in the previous sentence by way of an example. I also do so because Vermeule has generated (as he himself notes) “panicky, bewildered outrage.” (p. 67) He strongly implies that the responses to his work are over-the-top and without firm foundation. In order to avoid stacking the deck against Vermeule, I ignore his citations of De Maistre, Schmitt, Veuillot, (and so on) that come with existing associations.

The example I develop here occurs in the context of Vermeule’s discussion of Lochner vs New York (1905). Vermeule sides with Harlan’s dissent as the proper position for an advocate of the common good. Vermeule treats Peckham’s opinion for the majority (which is committed to a kind of pure freedom of contract) as an instance of bad faith (p. 65) betrayal of what Vermeule calls the “classical legal tradition.” Vermeule, thus, also rejects Holmes’ famous dissent, which in many ways is the true target of his discussion.

As I noted in my second post in the series, Vermeule claims to set forth his argument at the level of jurisprudence not political theory. But Vermeule has a tendency to slide into latter (and this is what I am focused on below).

While Peckham and his majority are treated as kind of ideologues who pervert the law, Vermeule treats Holmes as holding a skeptical position about the possibility of knowing and, thus, directly achieving the common good. Vermeule then goes on to claim:

That classical picture is central to the American legal tradition, which thus sets its face against both the arrogance of judicial libertarianism and the moral skepticism of Holmesian positivism. It assumes that there is a common good that political authorities can, should, and usually will act purposively to attain through reasonable determinations of (potentially competing) principles. In the words of a brilliant formulation by the Spanish theorist Ricardo Calleja, the injunction of classical governance for the common good is imperare aude — “dare to command.”—(p. 71.)

The endnote directs the reader to this (2020) blog post by Calleja in Ius & Iustitium. (This blog has published at least ten essays by Vermeule.) That blog post by Calleja starts with the following announcement, “This is the first part in a series. The second part may be found here.” So, in what follows I treat these two posts by Calleja as a single or connected argument.

Now, before I get to that, throughout his argument of Common Good Constitutionalism Vermeule presents himself as a kind of creative, right wing follower of Dworkin. That is he accepts (to simplify), Dworkin’s negative arguments against originalism and he agrees that constitutional jurisprudence is intrinsically impossible without moral principles. The capstone of this argument is the juridical proceduralism that the administrative state converged on, which, in Vermeule’s telling, is an exemplary instance of using the law to achieve the common good in the context of advanced cognitive division of labor and the epistemic obstacles associated with this.

So, at first, in the context of the body of Vermeule’s argument the reference to Calleja can be read as merely a rhetorical flourish. It can be taken to be a rhetorical resistance to the Kantian obsession with autonomy that has shaped left and right liberal twentieth century jurisprudence. Readers of Vermeule will understand that the pursuit of the common good trumps one-sided respect for autonomy. But that’s compatible with (in the hands of, say, a Right Hegelian) the common good also shaping even constituting individual flourishing. So far so good, and presumably uncontroversial.

Calleja’s essay starts with an epigraph from Kant’s “What is Enlightenment?” and the first sentence states, “The project of the Enlightenment can be summed up as the rejection of authority.” This rejection Calleja goes on to gloss as: [I] “the mediating role of authorities in conveying truths, theoretical or practical, to adult individuals is discarded.” Calleja thinks this rejection is a mistake, and he defends a species of paternalism. This is no surprise to the reader of Vermeule. And if all that mattered in Vermeule’s argument were the extent of paternalism, the outraged responses to his work would be disproportionate.

Calleja immediately goes on to make a further sociological claim (which he attributes to Menant’s (2018) Natural Law and Human Rights: Toward a Recovery of Practical Reason): the Enlightenment, [II] “ultimately has led to a debasement of all social institutions: familial, academic, ecclesiastical, and civil….the philosophical principle of the Enlightenment deforms the character of rulers and ruled alike, [IIa] making the former irresolute and [IIb] the latter undisciplined.”

Much of Calleja’s essay articulates variants of [II] that are roughly familiar from communitarian critiques (remember those?) of liberalism. In his own voice, Vermeule also holds something like [II]. This can be readily ascertained by looking at what he says about “the depletion of preliberal social capital” in his (2019) essay “Liberalism and the Invisible Hand” in American Affairs Journal, 1 (Spring): 172–97. (I didn’t discuss this claim in my first post on Vermeule centered on that essay.)

Ultimately [II] is an empirical matter and if you are persuaded by it you will probably agree liberalism is doomed. (One then wonders why it is also worth arguing against liberalism.) I don’t find anything offensive about putting forward [II]. If you are a liberal you may well think that something in the vicinity of [II] is plausible, but that there are also countervailing institutions (family, education, unions, religions, associations, corporations, etc.) Here I leave the status of [II] aside.

In Common Good Constitutionalism, Vermeule does not explicitly commit to [IIa-b]. However, I hope the reader agrees with me there is a non-trivial difference between ‘paternalism as conveying truth’ and ‘paternalism as disciplining the ruled.’ Calleja slides easily and quickly between the two (and I will capture this slide as ‘proper paternalism’).

Calleja (who was previously unknown to me) also makes another slide (in a right-inflected version of Adorno & Horkheimer) as can be inferred from the following claim: the “modern anti-authoritarian principle simply masks the reality of raw power, canceling the possibility of rationally ordering the exercise of authority for the common good, and opening the door to totalitarian power and manipulation.” So, here Kant and the Enlightenment project becomes the unintentional author of a Nietzschean will to power that blocks proper paternalism. (This — it’s really a sort of slippery road to serfdom — has a certain kinship with the argument of Strauss in Natural Right and History.)

At this point Calleja introduces the claim that Vermeule partially quotes in Common Good Constitutionalism:

Dare to exercise the rights and fulfill the duties of legitimate authority, which in its higher form the classics called imperium. This call challenges authorities of all kinds (familial, academic, ecclesiastical, military, and civil) at every level. It is the anti-Enlightenment principle of rule by reason. 

So, here the counter-Enlightenment is presented as itself a species of rationalism. (We are far from mystical invocations of Burkean tradition here.) Calleja can be taken to be defending here both an epistemocracy and be taken to be defending a well-ordered polity. In an endnote (116), Vermeule himself approvingly quotes Aquinas:

Hence the best ordering of government in any city or kingdom is achieved when one man is chosen to preside over all according to virtue; when he has under him others who govern according to virtue; and when such government nonetheless belongs to all, both because all are eligible for election to it and because it is elected by all.

Aquinas is here defending on the authority of Aristotle, (but not unlike Al-Farabi) in a Platonic register, a kind of mixed constitution of the sort he ascribes, I think, not unreasonably to the Hebrew Bible. If one holds the unity of the virtues this is also rule by reason in a sense, although how to instantiate it is treated by Vermeule as a matter of prudence (and contingent). Let me leave that hanging for a moment.

Crucially, for Calleja command is the rule of reason presupposing an act of will (by authority). And the point of this way of thinking about the rule of reason is to make space for legitimate coercion:

reason does not exclude the possibility of cutting certain discussions off, not by a definitive, conclusory argument but by an act of authority — res iudicata, causa finita. In the same line, it is obvious that every authority is invested with the right to coerce into external obedience within the realm of its jurisdiction, and to the extent that doing so does not cause greater harm. [emphasis added]

At this point Calleja circles back to the sociological claims regarding proper paternalism, and concludes: [III] “if an authority does not exert its coercive powers adequately, it fosters injustice and private violence.” As an an “egregious example” he offers the “clerical abuse of minors in the Church” which he treats as a consequence of a “unwillingness of ecclesiastical authorities to use the tools of canon penal law.” This failure is due to the “typically modern ideological undermining of authority in its duty to teach and to correct.” Or as he puts it earlier, the enlightened project could not “eradicate the rule of men over men, but it did eradicate the rule of men through reason.”

That is, the impact of the Kantian Enlightenment on modern society is the ultimate sociological source of the Church abuse scandal! He plausibly attributes this argument to Pope Benedict XVI both before and after his resignation. Better disciplining would have prevented the Church abuse scandal. It is noticeable, thus, that the widespread Clerical abuse scandal is not understood as an effect of unaccountable power, but as the effect of power that has become capriciousness rather than reasoned.

At this point (we’re now in Calleja’s second post) one may well wonder how to re-establish the rule of reason. Is this a call for counter-revolutionary violence? (Calleja’s Spanish audience may be especially attentive to this.) Calleja threads a fine needle between outright sedition and ardor:

Imperare aude, a call to command, is not immediately intended to debunk the formalities of liberal legalism and proceduralism. The classical tradition is not decisionist and does not ground the validity and legitimacy of the political and legal order in an original framing decision. Consequently, this tradition does not promote revolutionary coups to restore justice. It always inheres in an existing political community with a functioning legal system that entitles authorities—inasmuch as they can preserve the basic conditions of political peace—to rule for the common good, ordinarily and to the extent possible with respect for the existing laws determining competences and procedures. [emphases added]

So, from Calleja’s perspective, the status quo is de facto an unjust political peace. And while Calleja explicitly promotes a “restoration of the classical legal tradition” (in the final sentence of the second post), it is only once the conditions of political peace start to disappear that revolution is permitted. This is is so because in the context of established institutions, which are an expression of political community, there may well be a possibility to revive justice without resort to revolution or civil war (which is the greatest possible harm).*

It’s not quite clear how to get from here to there. As I noted last week, For Vermeule “Democracy – in the modern sense of mass electoral democracy – has no special privilege in this regard.” (To anticipate a future post: it seems that for Vermeule what’s needed is justices who follow his way of thinking.) Calleja himself speaks more prudently.

Calleja seems to think, however, that existing rulers can induce the restoration of the classical legal tradition. His position is then a species of re-education in the art of governing/ruling, but not for the sake of mere “discussion,” but for the sake of moving “beyond the suffocating strictures of modern legal and political thinking.” Rather, this re-education is the intended effect of action, “Dare to command, even at the risk of committing mistakes and excesses!”

This is political existentialism reborn. The language of ‘mistakes and excesses’ is a bit like the language of ‘collateral damage’ of military propagandists. Calleja had been more forthright in the first post, where he acknowledges that “None of this precludes the danger of an abuse of power.”

As was already clear (recall) from the way Vermeule responded to the Popper-Shklar objection, this is, in fact, Vermeule’s own position:

[A]sking for certainty is to ask more than any system of government can give. Administrative agencies will always make blunders and even engage in localized abuses – just as did common-law courts in their heyday. (p. 138, emphasis added)

From the perspective of the art of government this is surely true. But it is also incomplete. In the body of his text, Vermeule is far more than Calleja a proceduralist. Throughout, he advocates for purposive, reasoned ordinations to promote the common good. But what he shares with Calleja (and this is the shared Schmittianism at the root of their thought) is a considerable disregard for post-facto mechanisms of accountability (a word only used by Vermeule when discussing other people’s views) even if one has stayed within the letter of the law. As Calleja makes explicit this is an effect of the fact that they read Aquinas (in my view mistakenly) as only offering mechanisms by which accountability flows down.

*This a rather Hobbesian argument.