Abstract

Common Good Constitutionalism (CGC) has emerged as a significant challenge to liberal-proceduralist constitutional theory, insisting that law and governance must be oriented toward substantive human flourishing. Yet CGC has remained strikingly silent on the structural gendering of state power—a silence this paper argues is not merely an oversight but is connected to CGC’s natural law inheritance. Drawing on Crenshaw’s intersectional framework, Fineman’s vulnerability theory, Fraser’s participatory parity, and Pettit’s republican concept of domination, this paper develops a two-part argument. First, it demonstrates how the state, in pursuing the common good, simultaneously deploys care rationality and discipline rationality across three institutional domains—labour regulation, care regimes, and border governance—producing and distributing vulnerability in ways that fall disproportionately on feminized, racialized, and mobile workers. The analysis draws particular attention to Taiwan’s migrant domestic labour framework, long-term care policy, and comparative constitutional experience from Germany, South Africa, and the European Court of Human Rights. Second, the paper proposes a feminist reconstruction of CGC organized around three constitutive elements: intersectional analysis as a constitutional requirement, participatory legitimacy as intrinsic to the definition of the common good, and vulnerability as an affirmative constitutional category. The paper argues that this reconstruction is not an external imposition on CGC but is demanded by CGC’s own normative commitment to a constitutional order genuinely ordered toward the flourishing of all.

Keywords: Common Good Constitutionalism, intersectionality, vulnerability governance, care rationality, feminist jurisprudence

Introduction: The Gender Blindspot of Common Good Constitutionalism

The resurgence of Common Good Constitutionalism (CGC) in contemporary legal theory marks a significant departure from the dominant liberal-proceduralist paradigm. Associated most prominently with the scholarship of Adrian Vermeule, CGC insists that the constitutional order is not a neutral framework for aggregating private preferences but a purposive architecture oriented toward substantive human flourishing (Vermeule, 2022, p. 7). Drawing upon a rich tradition of classical natural law—running from Aristotle and Aquinas (1948) through to modern theorists such as John Finnis and Alasdair MacIntyre—CGC calls upon courts and administrative actors alike to interpret law in light of the common good, understood as an objective ordering of human welfare that transcends individual interest (Finnis, 2011, p. 155).

Yet, for all its normative ambition, CGC has remained strikingly silent on one of the most persistent features of modern governance: the structural gendering of state power. From MacKinnon’s (1989) critique of formal equality to Fineman’s (2008) vulnerability theory and Crenshaw’s (1989, 1991) intersectional framework, feminist legal scholars have long demonstrated that apparently neutral legal categories—family, labour, dependency, welfare—are in practice deeply gendered. They distribute vulnerability unequally, and they do so through the very institutional mechanisms that CGC proposes to rehabilitate: administrative discretion, expert governance, and purposive state intervention.

This paper argues that the silence of CGC on gender is not merely an oversight but a structural feature of its theoretical commitments. By anchoring the common good in a tradition of natural law that historically construed the family as a hierarchically ordered unit and women’s civic participation as derivative rather than constitutive, CGC risks reproducing, under the guise of substantive purposiveness, the same asymmetries it seeks to transcend. The paper does not, however, rest at critique. It develops a constructive argument: that CGC can be extended and corrected through feminist and intersectional theory, and that such extension is not merely a concession to contemporary sensibility but is required by CGC’s own internal logic of normative coherence.

Two conceptual dimensions are central to this corrective project and receive sustained attention throughout the paper. The first is the intersectional dimension—the recognition, drawn from Crenshaw’s (1989, 1991) foundational work, that vulnerability is not produced by gender alone but through the convergence of gender, race, class, migrant status, and bodily capacity. The second is the participatory dimension—the claim that the common good cannot be authoritatively defined and administered from above by expert institutions alone, but requires the democratic inclusion of those whose vulnerability is at stake, most especially women, racialized workers, and care-dependent populations who have historically been excluded from deliberative fora that define public purposes (Fraser, 2003, pp. 36–40).

The paper proceeds as follows. Part II situates CGC’s treatment of the state, family, and care within its natural law inheritance, identifying the points at which gender-neutral language conceals gendered normative assumptions. Part III introduces the analytical framework of vulnerability governance, drawing on Fineman’s (2008) vulnerability theory and Pettit’s (1997) republicanism to theorize how the state simultaneously mobilizes care and discipline as rationalities of governance. Part IV examines three institutional sites—labour regulation, the care regime, and border governance—through an intersectional lens, demonstrating how the common good is operationalized as a gendered order in each domain. Part V develops the participatory critique, arguing that CGC’s administrative institutionalism, without democratic anchoring, risks devolving into expert paternalism. Part VI proposes a feminist reconstruction of CGC that integrates intersectional analysis and participatory legitimacy as constitutive rather than supplementary elements of the common good.