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 Posted: 21 Apr 2021
Date Written: April 9, 2021
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.
Keywords: common good, originalism, legal positivism, legal interpretation, values, natural law, tradition, positive law, legislative intent
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