Thomas A. Smith (University of San Diego School of Law) has posted The Ruler’s Equity: Common-Good Constitutionalism and the Reoccupation of Jurisdiction (48 pages) on SSRN. Here is the abstract:
This article argues that the classical legal tradition rests on two commitments, an account of the ends of law and an account of the form of authority, and that its specifically constitutional character belongs to the second, the conception of authority as iurisdictio, a bounded competence held in and through office. It contends that Adrian Vermeule’s common-good constitutionalism keeps the tradition’s teleology while discarding its jurisdictional form, and that the concept of determinatio, and the doctrine of equity on which the construction most depends, are thereby enlarged into instruments of a directing will rather than a bounded office. Tracing Vermeule’s thought from its avowedly Schmittian beginnings through the administrative writings to the classical turn, the article maintains that the persistence of the substance beneath the changed vocabulary is the mark of reoccupation, in Blumenberg’s sense, rather than of recovery, and that a common good pursued without jurisdiction is not the classical common good but a likeness of it.
(Via Larry Solum at Legal Theory Blog, who says: “Highly Recommended!”
Posted at 6:25 AM