Andrea Pin is a full professor of comparative public law at University of Padova (Italy).
“Well, that is a plan. I am perfectly ready to consider it. Of course . . . . I should want a guarantee that you are taking me to a place where I shall find . . . an atmosphere of free inquiry . . . .”
“No,” said the other. . . . “No atmosphere of inquiry, for I will bring you to the land not of questions but of answers, and you shall see the face of God.”
“Ah, but we must all interpret those beautiful words in our own way! For me there is no such thing as a final answer. The free wind of inquiry must always continue to blow through the mind, must it not? . . . [T]o travel hopefully is better than to arrive.”
—C.S. Lewis, The Great Divorce
Introduction
The wave of narratives that are increasingly questioning, challenging, or even dismantling some of the fundamentals of liberal democracies in the West has many names, including illiberalism, populism, and authoritarianism, among others. The growing body of scholarship aimed at vindicating liberalism—from Cass Sunstein to Michael Walzer to Francis Fukuyama, just to name a few—confirms its impact. Interestingly, this wave has often found purchase among Christians and especially Catholics, who reject liberal constitutionalism for various, and sometimes varying, reasons. However, one charge purports to strike at the core of liberalism: its individual-centered, freedom-based approach.
In the twentieth century, Christians, especially Catholics, seemed to believe that their theology and anthropology would marry easily with liberal constitutionalism. Dignitatis Humanae (1965) drew on the theory and practice of liberal constitutions to advocate for a rounder protection of religious freedom; John Paul II and US American thinkers such as Michael Novak echoed each other when they emphasized the reconcilability of Western capitalism and Western democracy with the Catholic Weltanschauung; Christian Democratic parties led or participated in government coalitions in several liberal democracies. If Christians failed in lobbying for the inclusion of Christianity in the Constitution of the European Union, the Lautsi (2011) case in the European Court of Human Rights allowed the continued display of the crucifix in Italian public schools.
However, more recently, Christian and especially Catholic circles have become increasingly dissatisfied with liberal constitutionalism. In fact, less than 20 years ago, Western political agendas and narratives shifted, and Christians began to feel estranged. Intellectuals such as Benedict XVI then encouraged Catholics to adapt to the new reality: they had to conceive themselves as “creative minorities” in the West.
Feeling increasingly minoritarian and sidelined by mainstream Western culture, some Christians sought an exit strategy. They found it in the famous closing paragraph of After Virtue, in which Scottish philosopher Alasdair MacIntyre counsels how to survive what he calls “the coming ages of barbarism and darkness”:
What matters at this stage is the construction of local forms of community within which civility and the intellectual and moral life can be sustained through the new dark ages which are already upon us.
Catholic-turned-Orthodox Rod Dreher took McIntyre literally. His 2017 book The Benedict Option made an impact with his idea of withdrawing and rebuilding “intentional communities” in a safe environment. Christians, Dreher asserts, have to disavow conservative politicians, go into “exile,” and build “an ark in which to shelter until the water recedes.” He proposes generating a “parallel polis” as an alternative to the structures, mechanisms, and rituals that govern Western societies.
The water receded when the opposition to the language of rights, with its emphasis on the individual, found purchase in the West. Christians no longer needed to go into exile. They started liaising with parties again and forming new platforms that tend to (1) be skeptical of supranational bodies, (2) emphasize national identity and traditions instead of rootless cosmopolitanism or (3) invigorate natural law-based discourses, and (4) value social homogeneity and advocate a modest pluralism. For example, Professor Gerard Bradley, a prominent Catholic academic, has argued that a natural law–based theory of constitutionalism would fight the “intellectual causes of the scarcity” of “civic virtues”—including “conceptual linchpins of contemporary constitutionalism” such as “constitutional patriotism,” “shared values,” and “liberalism.” He has suggested that these should be replaced with “an inclusive conversation about the common good,” the “[r]evivification of a full-orbed conception of the common good,” and piecemeal reforms such as “immigration restrictions” and “protectionist laws.”
The Great Divorce
Catholic and generally Christian strands of thinking have increasingly argued for a dramatic reconsideration of the political and legal foundations of the West. Drawing from a series of intellectual titans of the twentieth century—from Germain Grisez to John Finnis—these thinkers have argued that “liberalism failed” and that a “regime change” should replace political and legal institutions. Disavowing a liberty-focused, individual-centered constitutional logic, many of them have advocated for an “integralist” alternative that triangulates between common good, virtue, and happiness, finding in Aristotle its primary source of inspiration.
It is impossible to do justice to Aristotle’s immense contribution to moral and political thinking. However, one particularly traceable aspect of his work in contemporary scholarship is his emphasis on the connection between the individual and the “city,” which in contemporary adaptations usually takes the form of the state: The fullness of human life would reside in the participation of the individual in the life of the community. In turn, political life should pursue the common good and therefore be worthy of human dedication. It is within the framework of the life of the city that everyone can achieve happiness—that is, the virtue of a good life in common.
This Aristotelian inspiration hardly finds a place in contemporary constitutionalism: happiness has rarely caught the interest of contemporary legal thought. No consideration of “happiness” or “human flourishing” is found in the Cambridge Companion to the Rule of Law, the Cambridge Companion to Comparative Constitutional Law, the Cambridge Companion to Public Law, The New Oxford Companion to Law, the Research Handbook on the Politics of Constitutional Law, the Oxford Handbook of Comparative Constitutional Law, the Routledge Handbook of Constitutional Law, or the Comparative Constitutional Law volume edited by Ginsburg and Dixon.
Many state constitutional texts acknowledge the right of every individual to pursue their own happiness, but those that enlist as state goals the happiness of the individual and/or the community as a whole are few: Antigua and Barbuda, Bhutan, Eswatini, Ghana, Guyana, South Korea, Liberia, Niger, Nigeria, Thailand, Turkey. Most of these states are in the Global South, and many blend the classic tenets of liberal constitutionalism with local traditions or specific ideologies. France, the United Kingdom, and the American Declaration of Independence are also on the list only because eighteenth-century state instruments that mention happiness still hold constitutional force.
Excluding France, the UK, and the USA, countries that mention happiness rank low among rule-of-law-compliant states: in the 2025 World Justice Project Rule of Law Index, the average score of the nine countries for which data are available is 0.51 (with 1 being the highest possible score), placing them cumulatively at around 75th out of 143 countries. Data seem to suggest that the rule of law and happiness, at least as a formally stated government priority, do not necessarily go hand in hand.
An analysis of the impact of the notions of “virtue” or “morality” on rule of law does not take us much further. Instances in which state constitutions mention or promise to foster morality and virtue are very few and not particularly optimistic for the prospects of enforcing them through the law and political institutions. The list includes Angola (which scores 0.42 out of 1 and ranks 113th out of 143), Colombia (0.47 and 95th), the Russian Federation (0,41 and 119th) Thailand (0.50 and 77th), Vietnam (0.50 and 83rd), and Zambia (0.45 and 103th). Rwanda has the best scores (0.63 and 39th). Cape Verde and the constitutional text of Libya are not included in the list. The most noticeable examples of countries that promote virtue are Iran and China. In general, a perusal of constitutional texts suggests that morality, virtue, and happiness are not a trademark of Western liberal constitutionalism.
The common good is much more present in comparative constitutional law than the notions mentioned above but suffers from a critical ambiguity: it is not clear whether the common good is a good in itself or only represents the conditions that are necessary or desirable for individuals to pursue and enjoy their own personal goods. The fact that happiness receives very little attention and that the contours of the common good itself are debatable proves that, both in theory and practice, liberal constitutionalism has dissociated the two from each other and from the notion of virtue. But this is exactly where the “integralist” wave is gaining momentum: as a way to reconnect happiness and the common good.
The Virtue of the Body Politic: A Divorce Within the Divorce
Arguments successfully deployed by those who promote illiberalism and other “radical alternative” ideologies are of two kinds: one centered on (Christian) religion and tradition, and the other centered on natural law and common good. The distance between them is likely not particularly evident because they appear equally to criticize and oppose liberal constitutionalism. However, the two strands seem to diverge on a series of substantive issues.
The rationale based on religion and tradition cherishes the popular component of democracies, arguing that traditions, customs, and cultural practices reflect the will of the people. Such practices would incorporate enduring values that pass from one generation to another, strengthening transgenerational bonds. Thus, religious and spiritual traditions would connect fellow citizens not only with each other but with earlier generations.
The natural law and common good rationale operates according to a different logic: it leverages the discursive aspect of rationality. It does not purport to superimpose one ideology over another but rather to articulate its reasoning in nonpartisan terms. The only major intellectual prerequisite is trust in human rationality.
Those who emphasize Christian tradition as the backbone of Western identity usually focus on a list of legal and political values that they consider indispensable cultural prerequisites, main drivers of political and legal coexistence, and outer limits of a polity. In contrast, supporters of a purely rationally conceived natural law and of the common good appeal to persuasion and debate and are less preoccupied with defining the boundaries of the polity, although they believe certain cultures in particular value rationality and the search for truth and justice.
For supporters of a national identity based in Christian tradition, identity determines the scope of the common good and the borders of a polity and gives legitimacy to legal obligations. For supporters of the common good and natural law, a common identity spontaneously develops through social ties, giving substance to rational discourses.
Conclusions
In the opening page of On Liberalism, Sunstein argues that liberalism cares about the common good and requires a series of personal and civic virtues. Although he fails to explain what the common good consists of for liberals, Sunstein tries to respond to charges, as articulated by Bradley, that “contemporary constitutionalism . . . leads to an increasingly intrusive, supervised, and supervisory—yet morally arid—public realm of conformity to legal or ‘human rights’ directives.” John Milbank has similarly warned that “the modern” has dissipated the notion of “teleological freedom” and stopped reflecting on the goals of a polity.
Asking ourselves what our individual and collective freedoms are for seems a task truly worthy of consideration: it targets a blind spot in most contemporary trends in liberal constitutionalism. However, the new constitutional alternatives revolving around identity, common good, or natural law also have apparent blind spots.
First, most natural law theorists are religious and predominantly Catholic, although they purport to argue in purely rational arguments. Second, such theorists pick and choose between Catholic values, often filtering out post–World War II calls to embrace pluralism, mitigate state powers, and cooperate in building supranational and international institutions. Third, despite the emphasis on every person’s right to religious freedom in documents such as Dignitatis Humanae, they are wary of the right’s full application to, or expression by, new minorities. And finally, and perhaps most notably, they argue for more laws and a more rigid legal compass. Indeed, many of those dissatisfied with liberalism’s language of rights and emphasis on liberties often add on to them—or replace them with—layers of more legal norms. The notions of “common good,” “identity,” and “natural law” seem more often to translate into more state laws, rather than virtues and social practices.