Common Good Ideology Seeks to Colonize Canada

My The War against Law: What’s wrong with common good constitutionalism¹⁾ focuses on the Oxford-based and dark money-funded “Judicial Power Project”, which in the UK makes the legal arguments in the service of an illiberal conception of the “common good”. That conception emerges from the work of these same lawyers in another Oxford-based project—the “Common Good Project”—which unites them with the Harvard Law professor and author of Common Good Constitutionalism Adrian Vermeule.²⁾ I show in the book why the legal arguments of these “common good lawyers” are in fact aimed at undermining legality, the rule of law and constitutionalism.

The basic idea of common good that drives this law-destructive project was pioneered by the now retired Oxford philosopher of law John Finnis, one of the founders of postwar “new natural law” theory.  For Finnis and Vermeule, the content of the common good is supposedly derived mainly from the work of Catholic natural law theologians, primarily Thomas Aquinas. But Aquinas died in 1274, and so his natural law theory in which the ruler promulgates the common good by specifying concretely the abstract principles of a theological doctrine does not contemplate the circumstances in which a modern democratic state makes law for a heterogenous rather than a homogenous society. I show in my book how the scholars who provide the legal arguments for the law-destructive project find their inspiration for how to adapt Aquinas to the circumstances of a modern democratic state in two German proponents of authoritarian anti-liberal politics of the 1930s, Carl Schmitt and Eric Voegelin.³⁾

Here I sketch the way that this international network of common good lawyers is seeking to colonize Canada. In 2025, three young Canadian lawyers established the “Restoring the Foundations of Judicial Power” project (RFJP), hosted by the Macdonald Laurier Institute, a conservative Canadian think tank. The founders of RFJP are alumni of the Runnymede Society,⁴⁾ established as the Canadian law student equivalent of the US Federalist Society in 2016 by the Canadian Constitution Foundation, a right-wing foundation based in Alberta;⁵⁾ and the Runnymede Society is now busily engaged in supporting the RFJP’s claims. Their founding document, published in May of this year, is modelled on the outpourings of the Judicial Power Project, and their membership overlaps.⁶⁾ An “honorary member” is Yuan Yi Zhu, perhaps the most vituperative of the right-wing lawyers in the Judicial Power Project, and Richard Ekins, Oxford law professor and head of the Judicial Power Project, is one of four “advisors”.

Another advisor is Russell Brown, a former justice of Canada’s Supreme Court, who had been appointed to that Court in 2015 by Prime Minister Stephen Harper, leader of the Conservative Party, only to resign in 2023.⁷⁾ Brown’s appointment to the Court was controversial because of his public record of railing intemperately at what he perceived as its out-of-control progressivism.⁸⁾ In 2019, he co-authored a dissent in a voting rights case which challenged the Charter jurisprudence of the Court going back to 1982, the year the Charter came into force.⁹⁾ The Chief Justice pointed out in the judgment he wrote for the majority that the challenge came from nowhere as it had not been argued by the parties.¹⁰⁾

In fact, the challenge was based entirely on Finnis’ theory of the common good, as channelled by his former students—Bradley Miller, now a judge on the Ontario Court of Appeal, but from his time as an academic, Grégoire Webber, a Canadian law professor, and Ekins.¹¹⁾ The work by Ekins on which the dissent mainly relied made the following entirely fallacious argument: because the legislature has the capacity to deliberate well on what rights people should have, one should assume that when the legislature enacts a statute that affects rights, it has determined the content of the rights at stake correctly, and so judges should defer to the legislature.¹²⁾ This dissent subsequently became the jurisprudential lodestar of the RFJP’s founding document together with a recent common good-based dissent by Miller to an Ontario Court of Appeal decision.¹³⁾

Miller’s appointment to the bench in 2014, we should note, attracted as much controversy as Brown’s, as did the appointment at the same time of Miller’s colleague at a Canadian law faculty, Grant Huscroft, with  Canada’s national newspaper reporting that the federal government had appointed “two conservative judges to the bench”.¹⁴⁾ In one way, the appointment of two such judges was not newsworthy during Harper’s reign, for it was common knowledge in the legal profession and beyond that his cabinet would appoint only judges from the right of the political spectrum. What made the appointment worthy of national attention was that Huscroft and Miller were not senior members of the profession, the more usual pool from which judicial appointments are made, but law professors with track records of scholarship that made their appointments controversial. Moreover, Huscroft was appointed straight to the Ontario Court of Appeal, perhaps the most prestigious court in Canada after the Supreme Court, while Miller, who was appointed initially to the Ontario Superior Court, was elevated to the same Court of Appeal after just six months.

Huscroft’s scholarship was focused on opposition to entrenched bills of rights on the ground that they give political power to judges that belongs properly to the democratically elected legislature. That committed him to the view that Canada’s adoption of the Charter of Rights and Freedoms in 1982 put in place an illegitimate source of judicial power and yet he was taking office in a constitutional order in which that document is supreme law which his assumption of role, formalized in his oath of office, would commit him to applying.¹⁵⁾

Miller’s appointment was controversial for rather different reasons. His scholarship was less about opposition to entrenched bills of rights as such and more to the way courts interpreted the rights expansively, regarding, as the dominant metaphor has had it since 1929, the constitution as a “living tree” which evolves with the society in which it is located, thus allowing for organic growth through judicial interpretation.¹⁶⁾ In particular, he objected to the way in which Canada’s Supreme Court had interpreted the equality right in section 15 of the Charter of Rights and Freedoms to require that the state permit same sex marriage. His objection to this kind of interpretive approach was based on his former doctoral supervisor Finnis’s theory of the “common good” which deems gay marriage to be “damaging”.¹⁷⁾

Now the way that Finnis, Ekins and other UK-based common good lawyers deploy this kind of argument is designed for a legal order in which there is parliamentary supremacy. In contrast, the lawyers of the RFJP must contend with the Canadian entrenched bill of rights. The dissent in Frank exemplifies one mode of response, one which requires them to adopt the theory of statutory interpretation recommended by the UK common good lawyers, according to which judges must seek to find facts in the text of the statute in which the legislators’ intentions are embedded.¹⁸⁾ In addition, the RFJP’s founding document turns that same theory into a theory of the Canadian constitution with the result that the meaning of its provisions is frozen at the moment its texts came into force.¹⁹⁾ Finally, the document asserts as fact a tendentious interpretation of the “override” provision of the Charter—section 33 which permits both the federal and the provincial legislatures to legislate “notwithstanding” many of the rights protected in the Charter. While the standard and text-based understanding of section 33 is that a legislature may enact a statute that authorizes the executive to operate free from the constraints of a particular Charter right for a limited period, they claim that “[i]n truth, the clause was intended to empower the legislative branches to interpret (or reinterpret) Charter rights in ways that depart from judicial specifications of those rights”.²⁰⁾ Despite the fact that the interpretation is clearly tendentious, in an article first published in the National Post, a newspaper which has made itself the mouthpiece for the ever more extreme views of rightwing Canadian activists, and then republished on the RFJP site, Yuan Yi Zhu called for Supreme Court judges to be fired if they decide a matter on the interpretation of section 33 in a way he did not approve.  This is exactly the kind of tactic honed by Orbán in Hungary and Law and Justice in Poland for installing “illiberal democracy”.²¹⁾

Recall that the Canadian common good lawyers adapt the interpretive approach pioneered by Finnis and Ekins in an order of parliamentary supremacy to their order in which there is an entrenched bill of rights. I show in The War against Law that in the UK the approach strips the rule of law – the other main pillar of the British constitution – of all content by reducing it to a crude positivistic conception in which the rule of law is no more than those marks of positive law that make particular laws into more effective instruments of the policy choices of those who happen to hold power. And I argue that parliamentary supremacy twinned with this conception of the rule of law turns the legal order into one of executive supremacy, an order in which the government uses its control over parliament to hand itself unfettered power.

While the lawyers of the RFJP share that aim they must, as we saw, contend with Canada’s entrenched bill of rights. And as I sketched, they adopt the same crude positivistic approach throughout, one which in the case of section 33 of the Charter of Rights and Freedoms clearly distorts the text at the same time as it proclaims the virtues of fidelity to text and so to the law. They and their common good counterparts in the UK adopt this crude positivistic approach not only because it serves their political ends. More importantly, it is also the case that the approach is required by their understanding of morality, as the dictates of a pre-modern Catholic theology which holds that the ruler promulgates his best understanding of the common good by specifying concretely the abstract requirements of “the natural law”.

It is striking that in the UK and Canada this crude positivism has the result that the common good lawyers there regard the legal theory of Ronald Dworkin as the chief culprit in what they regard as an illegitimate judicial usurpation of power from the legislature. For Dworkin’s theory of interpretation holds that implicit in the law of any legal order are liberal moral principles that judges can and should rely on in justifying their decisions in “hard cases”, cases in which lawyers reasonably disagree about what the law in fact requires. In contrast, in the USA Vermeule has expressed his allegiance to this kind of theory, differing, or so he claims, from Dworkin only in that he supposes that the implicit principles are illiberal in nature.²²⁾

But despite his professed allegiance to Dworkin, Vermeule shares the crude positivism of the UK and Canada-based common good lawyers. Their top-down idea of promulgation is most fundamentally what requires the crude positivistic approach.  It is a crude positivism about morality, which can take a non-positivistic pseudo-Dworkinian shape only if that is appropriate in the context of the particular order. The Vermeule and Finnis-inspired conception of the common good turns out not to be about the constitution of any legal order, but about the constitution of the political order its advocates hope their arguments will help to bring into existence.²³⁾

Two features of this kind of moral positivism are important. First, it is pre-legal positivism. The content of what will be made into positive law is determined outside of the space of the legal order by those with access to the transcendental moral truths of “the natural law”. Second, it is then promulgated and enforced within the space, adapted to the constitution of the particular legal order. For example, in Canada, the Charter is deemed the imperfect specification of this constitution behind the constitution so that the lawyers of the RFJP are entitled to reach for what they take to be the “in truth” principles. Moreover, the Charter is worse than imperfect. It is also fundamentally flawed in that it is inherently and explicitly liberal, as is the statutory bill of rights in the UK in the Human Rights Act (1998).  That is why the judges must be cut down to a size where they submissively defer to the legislative determination of rights in the service of a political program that will be realized only when the Trump-like figures in the Canadian political landscape are in power.²⁴⁾

In contrast, Vermeule, far from cutting US judges down to size, advocates that they take an activist role that drops the pretence of positivistic “originalism” and openly embraces what he deems to be the principles of the natural law. He does this, first, because of the different institutional structure of the US order with a president at the head of the executive who is not accountable to the legislature except in the case of impeachment. That structure provides a basis, however shaky,  for claims about the “unitary executive” that is lacking in Canada and the UK where for the executive to accrue the same kind of power requires that parliament hand that power to the executive, perhaps abetted by judges who uphold privative clauses that shield the executive from judicial review.²⁵⁾ The second factor is the obvious one of the current make-up of the US Supreme Court. Although the Republican majority on the Court has not been utterly supine during Trump’s second term, it has permitted him to accrue increasingly unchecked power and reliably has overruled its own precedent in a bid to install a version of Christian social morality at the heart of the US constitutional order.²⁶⁾

Vermeule and his UK and Canadian counterparts thus have the same vision of the ideology that the ruler should use the law to enforce. They differ only in that the constitutions of their legal orders perforce shape their legal strategies and that shows that they are neither after restoring the true constitution, nor rescuing the rule of law from liberal elites. In fact, they lack entirely any conception of the rule of law since all they have is a fever dream of a world without pluralism, a world where there is, to quote Finnis, “complete cultural integration” and “national homogeneity”.²⁷⁾

In this dream world, law exists only as the fiat of the ruler who promulgates the common good by giving concrete expression to the abstract principles to which some elite has privileged access. But the political orders in which they work are far distant from those of Aquinas and the other Catholic theologians whose legacy they claim to bear. It is no surprise then that when the leading figures among the common good lawyers look for usable political theories – theories that have some purchase in the world of twentieth- and twenty first century democratic and pluralist states – they find most appropriate Schmitt and Voegelin, two theorists who shared their dream of complete cultural integration and national homogeneity and sought to make it into reality in 1930s Germany and Austria.²⁸⁾