Vermeule’s highly original contribution to jurisprudence is a direct challenge to the two prevailing jurisprudential schools in the United States, and by extension, also, in other jurisdictions, such as Pakistan, where American jurisprudential debates have an influence. The two dominant theories are, originalism and progressivism. Vermeule considers both to be deficient, and proposes another theoretical framework, that of Common Good Constitutionalism.

The framework that the book adopts is, itself, Dworkinian. Common Good Constitutionalism, according to Vermeule, is a better account of law in accordance “with Dworkin’s law-as-integrity, combining ‘fit’ and ‘justification’” (Vermeule, 2022, p. 69). In other words, Vermeule’s Common Good Constitutionalism provides a better justification of law in terms of political morality, and is also a better fit with American jurisprudence, seen as a whole, with the last few chapters having been a deviation, which ought to be ripped out. For Vermeule, this deviation occurred due to progressivism’s pursuit for “the relentless expansion of individualistic autonomy” (p. 36), which itself was a reflection of the society’s sexual revolution in the 1960s, countered by positivism’s adherence “to conventions giving legal force to past acts of sovereign will” (p. 180-181), treating promulgated text “as cryptic collection of words dropped from the sky” (p. 83). Originalism, according to Vermeule, was a reaction by the conservatives to counter progressivism, with its genesis, in providing an alternative framework for uprooting “the evolving doctrine of the Warren and Burger Courts, which conservatives despised” (p. 93).

Interestingly, though, what originalism sought to do to progressivism, Vermeule’s Common-Good Constitutionalism, in turn, seeks to do to, both, originalism and progressivism. Also, while Vermeule adopts the overarching Dworkinian framework, he, nevertheless, does not agree with Dworkin all the way. According to Vermeule, Common Good Constitutionalism provides “a better account of justification than the one Dworkin offers” (p. 69). Dworkin’s account is more attuned to the rights of individuals in light of the overarching principle of “equal respect and concern” for each person in a polity. Vermeule does not agree with this conception of rights, whereby “rights exist to serve, and are delimited by, a conception of justice that is itself ordered to the common good” and “not defined in the essentially individualist, autonomy-based, and libertarian fashion familiar today” (p. 24, p4). In a phrase repeated in quite a few places in the book, the correct framework for rights, in Vermeule’s conception, has to be about “giving every man his due” (p. 4).

Common-Good Constitutionalism, itself, has been painted by Vermeule, at a very high level of generality, with common good defined in relation to the famous trinity, “’peace, justice and abundance’” (p. 7). The theory provides that law is “a reasoned ordering to the common good” (p. 1), that is, the “public authority must act through rational ordinances oriented to the common good” (p. 9). Vermeule invokes the image of a football team with a “unitary aim” that requires “cooperation of all and that is not diminished by being shared” (p. 28). With this, he completely disavows utilitarianism and individualism, purporting that the conception of justice under Common Good Constitutionalism is not reduced to “individual autonomy and preference satisfaction” (p. 184), but, instead, oriented towards pursuing the ends of the community as a whole, which is a distinct conception than the utilitarian summation of individual gratifications.

The book has a lot going on, but for our purposes, in this article, there is a heightened focus on only two aspects. First, the article focuses on Vermeule’s complete and utter dismantling of positivism, as an insufficient account of what constitutes the law. For us, Vermeule’s attack on positivism matters because, in the past, and even now in Pakistan, whenever authoritarianism rises, there is a disproportionate increase in apologist jurists wholeheartedly embracing positivism. In other words, it remains important that the text already in existence, and the text newly promulgated by non-democratic forces, or on the behest of those forces, has to be read in conformance with the “general principles, rooted in political morality, whose origin do not seem to depend on any particular act of positive law making” (p. 6). The reliance on positivism needs to be put under sustained pressure in Pakistan, since it appears in various shades, and allows jurists, in various different times, to state with a straight face, that the law is the law, irrespective of how and where it comes from, and whether it completely dismantles the established principles of political morality in our community.

Second, the article focuses on the book’s engagement with the question of abuse of authority, and the way the doctrine of Common Good Constitutionalism addresses this concern. Borrowing from his area of expertise, the administrative law, Vermeule advocates for a general deference to the authority, unless the authority exercises jurisdiction not vested in it, without any conceivable public interest, or exercises that authority arbitrarily and whimsically.

Individual rights, in........

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