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

See all articles by Stéphane Sérafin

Stéphane Sérafin

University of Ottawa

Kerry Sun

Sullivan & Cromwell LLP

Xavier Foccroulle Menard

Norton Rose Fulbright Canada LLP

Date Written: April 9, 2021

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.

Keywords: common good, originalism, legal positivism, legal interpretation, values, natural law, tradition, positive law, legislative intent

Suggested Citation

Sérafin, Stéphane and Sun, Kerry and Foccroulle Menard, Xavier, The Common Good and Legal Interpretation: A Response to Leonid Sirota and Mark Mancini (April 9, 2021). Constitutional Forum, Vol. 30 No. 1 (2021) 39-54, Available at SSRN: https://ssrn.com/abstract=3823383

Stéphane Sérafin

University of Ottawa ( email )

2292 Edwin Crescent
Ottawa, Ontario K2C 1H7
Canada

Kerry Sun

Sullivan & Cromwell LLP ( email )

United States

Xavier Foccroulle Menard (Contact Author)

Norton Rose Fulbright Canada LLP ( email )

Suite 2500, 1 Place Ville Marie
Montreal, Quebec H3B 1R1
Canada

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