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04/25/2021

Stéphane Sérafin et al.: The Common Good and Legal Interpretation
Michael Ramsey

Stéphane Sérafin (University of Ottawa), Kerry Sun (Sullivan & Cromwell LLP) and Xavier Foccroulle Menard (Norton Rose Fulbright Canada LLP) have posted The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini (Constitutional Forum, Vol. 30 No. 1 (2021) 39-54) (16 pages) on SSRN.  Here is the abstract: 

Recent debates in the United States and Canada bear witness to a renewed interest in the moral foundations of legal interpretation. This article offers a contribution to the ongoing debate in Canadian legal circles, responding to critiques by Leonid Sirota and Mark Mancini of the emergent theories of “common good originalism” and “common good constitutionalism”. Contrary to our interlocutors’ view, the natural law tradition does not “look to extraneous moral and policy commitments as guides for legal interpretation” nor does it see the law as a mere instrument to achieve “pre-determined outcomes.” Rather, it regards the positive law and natural law as reciprocally interrelated; natural law lends intelligibility to the positive law, while positive law makes concrete the abstract precepts of natural law. This perspective provides valuable insights into the activity of legal interpretation, as directed toward understanding and giving effect to the legislature’s reasoned choices for the common good.

And here's the introduction, which is helpful in describing the arguments to which the paper is responding (footnotes omitted):

A renewed interest in the moral foundations of legal interpretation in the United States is increasingly reverberating in Canada. For example, on February 22, 2021, Leonid Sirota and Mark Mancini published a post on the Double Aspect Blog entitled “Interpretation and the Value of Law” (“IVL I”). Although the post itself merely claimed to show “[w]hy the interpretation of law must strive for objectivity, not pre-determined outcomes,” the timing of the piece implies that it was meant to respond specifically to Josh Hammer, the Newsweek correspondent and constitutional lawyer, who has recently proposed a framework of “common good originalism” to correct the perceived failures of the originalist framework applied by Justice Gorsuch of the US Supreme Court in Bostock.

This is an argument that Sirota and Mancini appear to perceive as a threat to their preferred paradigm — textualism in statutory interpretation, originalism in constitutional matters — on the grounds that it introduces “substantive political content” into the law. Since then, Sirota and Mancini have published a further blog post, entitled “Interpretation and the Value of Law II” (“IVL II”), which purported to respond to the arguments we advanced in an earlier version of this article.  While the subsequent post clarified our interlocutors’ position on a number of issues, many of our initial arguments remain unaddressed.

Separately, our initial response to Sirota and Mancini prompted another comment by Asher Honickman, calling for a more robust contextual approach within an ostensibly positivist, textualist framework. As Honickman observed, “[t]here is a lively debate afoot in legal circles, both in the United States and now in Canada, on the ‘common good’” and its relation to juristic activity. In this article we reprise and elaborate upon our arguments, in light of the subsequent responses by our interlocutors. Specifically, we argue that, to the extent that Sirota and Mancini’s posts in IVL I and II should be read as a response to Hammer, they misunderstand his position as a threat to originalism. Sirota and Mancini’s proffered critique of “common good originalism” misses the mark, we suggest, because they confuse Hammer’s broadly positivist “common good originalism” with the quite different arguments advanced by Harvard law professor Adrian Vermeule, whom they explicitly criticized in IVL I as favouring an approach that “look[s] to extraneous moral and policy commitments as guides for legal interpretation.” 

That said, we also object to Sirota and Mancini’s characterization of the alternative natural law position they ascribe to Vermeule and others. Whatever else can be said about the ultimate merits of this jurisprudential tradition, proper natural law theories do not constitute a form of legal realism, as Sirota and Mancini appear to believe. That is to say, these theories do not regard legal reasoning or adjudication as mere instruments to achieve “pre-determined outcomes.”