was my Trade Tripper column in the recent weekend issue of BusinessWorld:
One legal and political concept that has been
ignored in today’s public debates relating to law and policy is that of
the "common good." The disregard could be due to simple ignorance or to
deliberate ideological calculation. But whatever the reason, the failure
to remember what the common good is has led undoubtedly to a
discernable state of confusion in public debates.
It really doesn’t matter if one is "progressive," liberal, or
conservative. Those are political labels fit for another discussion.
What is important at this point is to determine the difference between
truth or reality from those which are essentially manufactured to
achieve a political end.
Many academics now seem to want to make us believe that the proper
direction of the country is their version of a secularized, pluralistic
society moving along Rawlsian lines. What this in essence means is that
they seek to construct policies that utilize the technique of the "veil
of ignorance," whereby the "justness" of a policy is seen by ignoring
one’s position, talent, properties, interests, or preferences within
society.
Now the merits of John Rawl’s ideas on political thought is not the
issue here (although Alasdair MacIntyre may have something to say about
it). The point is that our society was simply not constructed along
Rawlsian thinking. To impose such, as some legal or political thought
academics are advocating), causes a disconnect between what our society
is and how it’s supposed to react, and at the same time removing from
the people their sovereign function of designing what our society is to
be.
The identity of what our society is can be seen in our Constitution. And
our society (and its constitution) were both created not within a
vacuum or through a veil of ignorance, but with a peculiar context,
circumstance, and history.
It’s a given that our Constitution borrows heavily from the US
Constitution. Clearly, the people who wrote our Constitution knew the
context in which they were writing it (particularly coming off the
Martial Law experience, as an example) but also the context in which the
US Constitution was written.
One particular context that must be considered is the background of the
US Constitutional Convention delegates: of the 55, around 29 served in
the military, a substantial majority had experience in constitutional
law drafting (at least at the federal State level), in fact a majority
of them were lawyers (with the rest being landholding farmers,
businessmen, bankers, and doctors).
Significantly, almost all of the delegates would also sign the other
fundamental documents of the US: the Articles of Confederation and --
more importantly -- the Declaration of Independence. The consistency of
thought in their founding political documents is therefore there.
Another context is the religious and philosophical beliefs of the
delegates: most were Christians (only two were Catholics, the rest were
Protestants). At the very least, all believed in a deity or were theists
of some sort.
Also, the delegates were certainly quite aware of Aristotelian thought,
and quite definitely the ideas of the Enlightenment thinkers such as
Locke and Rousseau. That would mean then that the US Constitution was
framed with the idea of man’s telos or purpose, of self-evident natural rights, and of the common good (or "general will").
Interestingly, the US Constitution’s preamble contained the phrase
"general welfare" instead of the "common good." But again, context: the
two were seen as interchangeable, at least in the eyes of the delegates.
"General welfare" would also appear in prior Philippine constitutions.
However, within the context of the present Philippine Constitution, the
use of the phrase "common good" was done deliberately, as Fr. Joaquin
Bernas, SJ, attests:
"An attempt to restore the phrase ‘general welfare’ in place of the
Committee’s phrase ‘common good’ was not accepted. The change from
‘general welfare’ to ‘common good’ was intended to project the idea of a
social order that enables every citizen to attain his or her fullest
development economically, politically, culturally and spiritually. The
rejection of the phrase ‘general welfare’ was based on the apprehension
that the phrase could be interpreted as meaning the ‘greatest good for
the greatest number’ even if what the greater number wants does violence
to human dignity, as for instance when the greater majority might want
the extermination of those who are considered as belonging to an
inferior race. It was thought that the phrase ‘common good’ would
guarantee that mob rule would not prevail and that the majority would
not persecute the minority." (see Fr. Bernas; The 1987 Constitution of the Republic of the Philippines, 2009)
The preamble lays down the purpose of the Constitution. It also, as Fr.
Bernas points out, is a "manifestation of the sovereign will of the
Filipino people." Our laws, therefore, must always be made with the
"common good" (as defined and understood within its context and history)
in mind. To do otherwise could result in a law made with "grave abuse
of discretion."
