The Role of the Common Good in Legal and Constitutional Interpretation

Abstract

In this Article I argue that the concept of the common good - a concept of which the modern secular legal academy has lost sight - plays an essential role in an adequate theory of legal and, more specifically, constitutional interpretation. The concept of the common good fills a gap in the current understanding of legal and constitutional interpretation.

First, I will discuss the legal academy's understanding of the determinacy of legal materials. I will show how, occasionally, outcomes in legal cases are underdetermined, that is, the legal materials governing a case leave the judge with some discretion. I will describe two analytically distinct causes of this underdeterminacy. The first is the universal nature of legal texts as applied to concrete, contingent circumstances. The second, broader cause is the underdetermined nature of and relationship between legal materials - statutes, cases, legal rules and principles - more generally.

Second, I will provide a rough overview of the nature of law provided by the Catholic Intellectual Tradition. This overview will discuss the characteristics of law, the nature of the legislative process, and the role of the judge. Central to this understanding is the common good.

Lastly, I will apply this understanding to statutory and constitutional interpretation and show how in each instance the common good must play a role because of the underdetermined nature of legal adjudication. In doing so, I will show how the Catholic Intellectual Tradition provides rich conceptual resources upon which to draw. I conclude that the context in which legal underdeterminacy arises is important. In the statutory context, when judges are faced with underdeterminacy caused by the universal nature of legal texts, they must cooperate with the legislator to advance the legislator's end, but in the constitutional context, when the original meaning of the Constitution is underdetermined, courts must defer to legislative constructions. However, when judges confront underdeterminacy of legal materials more generally, in both contexts they must exercise their discretion in such a manner as to enable society to more effectively pursue the common good.

Keywords: constitutional interpretation, interpretation, determinacy, determinate, indeterminate, indeterminacy, originalist, original meaning, common good, Catholic Intellectual Tradition, Aquinas