A Lesson of Virtue

Harvard Law School professor Adrian Vermeule recently launched his new book. In last week’s edition of, Vermeule and John Pang, Malaysian senior fellow at Bard College in New York, described the shared classical conceptions of the common good and the relationship between individual and collective rights in their interviews with our senior editor Li Fangfang. In this edition, we share their views on the difference between the two modern systems and the United States’ departure from the classical view of the common good. Here are some excerpts:

What could be the underlying reason for the fact that many Americans would rather be rich in a poor nation than be poor in a rich nation,which you see as self-defeating? What role do law and morality play in such a society?

Adrian Vermeule: It’s hard to disentangle all the influences, material and cultural,which have produced this state of affairs.Suffice it to say that two developments stand out. One is that American elites increasingly are detached from the views and interests of the people they govern—detached economically, culturally, even geographically.They see the people not as fellow citizens for whose welfare they have a responsibility, but as alien masses that pose a threat to“democracy,” by which the elites mean liberalism.

Another development in the domain of law, and in some ways the subject of, is that American constitutional law has lost sight of the classical conception that law is a teacher of virtue and must be ordered to the benefit of the whole community. Instead,our law is increasingly a charter of liberal autonomy-based individual rights—a vision that serves the interests of affluent elites much better than it serves the welfare of the people as a whole,who generally suffer the most from free divorce,the dissolution of family structures,a n d c o r p o r a t e domination of the economy.

American liberal elites imagine themselves as in a certain way floating above society. Yet I think it has become clear even to them that they are ultimately located in space, in a geographic political community, and that they cannot entirely separate themselves from that community for good or for ill, even if they live in gated compounds and generally attempt to insulate themselves from the increasingly decayed,fractious, and disordered society around them. Like it or not, all those in a common society ultimately share a common fate.

“Our law is increasingly a charter of liberal autonomy-based individual rights—a vision that serves the interests of affluent elites much better than it serves the welfare of the people as a whole, who generally suffer the most from free divorce,the dissolution of family structures, and corporate domination of the economy.”

—Harvard Law School professor Adrian Vermeule

In the 1930s, Lin Yutang, a famous Chinese writer, once compared the Western legal sense with that in China based on his observance. “A constitution presupposes that our rulers might be crooks who might abuse their power and violate our ‘rights,’ in which case we would use the constitution as a weapon to defend ourselves,” he wrote. In providing a comparison, he continued that the Chinese conception of government is of a parental government or a government by gentlemen, who are supposed to look after the people’s interests as parents in whose hands they place their full confidence.Could you share with us your insights into the major differences between the U.S.political system and China’s? In which aspects do you think the two countries can learn from each other?

Adrian Vermeule: One of the main points of the book is that American legal scholars have, since World War II, constructed an“invented tradition” that has falsified and rewritten the history and principles of the American constitutional order. Abandoning the classical focus on the common good as the proper end of government, American legal theorists of both left and right have adopted an approach that is both more positivist (or, more accurately, pretends to be more positivist) and more individualist than the classical tradition.

On this approach, constitutional law is seen primarily as a way of securing individual rights, justified by reference to liberal autonomy, against a threatening state.Constitutionalism is, as in Lin’s diagnosis,primarily a weapon of self-defense for a populace suspicious of its rulers.

But to underscore, this is not the classical conception of constitutionalism,and it is becoming clear that this conception has produced at least as many ills as it has fended off.So I would not subscribe to any suggestion that the only version of constitutionalism is the liberal version.

The classical Chinese dynasties certainly had constitutions with a small “c,” in the sense of fundamental normative principles of political right that guided the conception of what the proper aims of public authorities should be, even if they did not have written constitutions or constitutions founded on liberal rights. They also had the rule of law, as [for example] the elaborate Qing Dynasty (1644-1911) legal codes and adjudicative systems will attest; there are many examples of Chinese judges deciding that lower-level authorities had issued administrative orders or decreed punishments in error or too harshly.

More broadly, as a famous book by [American historian and political scientist] Charles Howard McIlwain argued, ancient and modern constitutionalism have to be distinguished. Not all constitutions are modern written constitutions, and not all written constitutions are liberal constitutions. Indeed, as I argue, I don’t think even the American written constitution is best understood as a liberal constitution, in the way it has been interpreted since World War II.

John Pang: How then to characterize an underlying philosophical basis of the Chinese legal system? Where is the continuity between its past and present, East and West to be found? I’d suggest it is in the persistence of fundamental notions of order and harmony, seen not just in its legal traditions and political philosophies but in an enduring political theology that underlies the contending schools of political thought,whether Taoist, Buddhist, Confucian or Legalist.

The continuity of China’s legal practice, given its turbulent recent history, must be found in its continuous political culture rather than in formal institutional continuity.The orientation of this culture to the common good is opaque to the modern liberal perspective, but so is that of the classical tradition of the West, and that of any historical culture that has ever inhabited Earth.

We can do much better than to try to translate Chinese conceptions of cosmic,natural and human order into contemporary Western, that is to say, liberal terms that are flattened versions of formerly rich concepts,corrosive of political and social community.

If, even in the West, “law” no longer means what it used to, easy comparisons that inevitably end up measuring Chinese practice in these terms, amid the country’s recovery from a century of violent encounter with modernism and legal liberalism,are doubly impoverishing. This is not to retreat into relativism or set up a counterexceptionalism. The need to build bridges of dialogue has never been more urgent. The firm bank across the river is the classical Western tradition articulated brilliantly for our time by Professor Vermeule in. BR