Tag Archives: Public Interest

The limits of Stare Decisis

Here’s Adrian Vermeule critiquing the US Supreme Court’s decision in June Medical Services, or to be precise, the judicial philosophy of Chief Justice Roberts, who provided the swing vote to the majority decision.

Now if I were a Philippine Supreme Court justice, what would be my approach to resolving contentious constitutional questions?

I’d say stare decisis is good and holds, until we have a better, and deeper and deepened insight into the law and the constitution; but then again, such insight is always founded on certain first principles, and in my case, such first principles are best rooted in the recognition of societal pluriformity (the juridical delimitation of public justice and the common good, and the recognition of differentiated responsibility and distinctive integrity of different societal spheres) — really our best defense against totalitarian systems of the Left and of the Right.

So on Vermeule’s approach, I’d say it is really just a procedural delay of the inevitable, albeit to be fair, he is certainly just looking at the notion of precedent defended by Chief Justice Roberts here. His approach calls for a “thick” appreciation of precedent, and not a “thin” one where one case is already held to be determinative of established precedent.

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Filed under Common Good, Constitution, Constitutionalism, legal theory, Principled Pluralism, Privacy, Public Interest

The “public interest” and its (mis)use throughout history

 

Politicians, courts and activists invoke the “public interest” at the drop of a hat, the better to marshall it in support of a favored doctrine or project. But consider this:

For the sake of the public interest Plato and Fichte defended the withdrawal of the children from their parents and wanted their education to be entrusted to the body politic. With an appeal to the public interest Plato wanted to abolish marriage and private property as far as the ruling classes of his ideal State were concerned. Aristotle wanted education to be made uniform in ‘the public interest’; on the same ground Rousseau wished to destroy all the particular associations intervening between the State and the individual citizen. Wolff desired the body politic to meddle with everything human and, at least for the Protestant Churches, he wanted the government to fix the confession.

The idea of the ‘salus publica’ was the hidden dynamite under the Humanistic natural law theories of Hugo Grotius and S. Pufendorff. In Chr. Wolff’s doctrine of natural law this idea resulted in a frankly admitted antinomy with his theory of innate natural rights. The slogan of the public interest was the instrument for the destruction of the most firmly established liberties because it lacked any juridical delimitation. The terrible threat of Leviathan is audible in this word as long as it is used in a juridically unlimited sense. The universalistic political theories could conceive of the relation between the State and the non-political societal structures only in the schema of the whole and its parts. This is why they could not delimit the idea of ‘the public interest’.
(“Dooyeweerd 1997–III: pp. 442–443)

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Filed under Dooyeweerd, Human Rights, International Law, legal theory, Public Interest, reformational philosophy