HomeArticlesThe Common Good in Legal Interpretation: A Response to Leonid Sirota and Mark Mancini

The Common Good in Legal Interpretation: A Response to Leonid Sirota and Mark Mancini

A renaissance of interest and juristic thinking about the moral foundations of the law and legal reasoning is underway, and its reverberations have now reached Canadian shores. On February 22, Leonid Sirota and Mark Mancini published a post on the Double Aspect Blog entitled “Interpretation and the Value of Law”.[1] Although the post itself merely claims to show “[w]hy the interpretation of law must strive for objectivity, not pre-determined outcomes,”[2] it appears evident to us at least that it was intended as a response to recent debates over legal and constitutional interpretation taking place in the United States. In particular, the timing of the piece implies that it is meant to respond specifically to Josh Hammer, the Newsweek correspondent and constitutional lawyer, who has recently proposed a framework of “common good originalism”[3] meant to correct the perceived failures of the originalist framework as applied by Justice Gorsuch of the U.S. Supreme Court in Bostock.[4] 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 alleged grounds that it introduces “substantive political content” into the law.[5]

In this essay we argue that, to the extent that Sirota and Mancini are responding to Hammer’s arguments, they have misunderstood his position as a threat to originalism. Their proffered critique of “common good originalism” misses the mark, because they confuse Hammer’s common good originalism with the quite different arguments advanced by Harvard law professor Adrian Vermeule, whom they explicitly criticize in their post as favouring an approach that “look[s] to extraneous moral and policy commitments as guides for legal interpretation.”[6] As we suggest, the former remains strictly speaking positivist in its broad orientation, and so should not trouble proponents of originalism in any meaningful way. That said, we also object to this 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, it is not a form of legal realism, as Sirota and Mancini appear to believe, and it is certainly not an approach that seeks to arrive at “pre-determined outcomes”.

1. Sirota and Mancini’s Legal Positivism

Before getting into what Sirota and Mancini misunderstand about Hammer and Vermeule’s very different arguments, it is worthwhile to first set out the substance of their own position so as to avoid any unnecessary confusion. From the outset, it is clear that Sirota and Mancini are both operating within a positivist legal framework, even as there is a degree of tension implicit in the way they present it. Thus, in typical positivist fashion, they write that “good law is better than bad law, but law. . . is precious quite apart from its substantive merits,” suggesting that this is because it allows individuals to predictably interact with each other in a pluralistic society.[7] Law is also “neither sacred nor permanent,” a jab at natural law theories that are historically opposed to legal positivism, or at least what they understand these theories to claim.[8] As they conclude the first section of the post:

But for law to fulfil its function, indeed to be law at all, it must have a fixed content independent of the views and preferences of those to whom the law applies. To the extent this understanding of law is now considered unorthodox, we hope to correct the record.[9]

Law, then, is to be abstract process, an abstract form, divorced from the particular preferences of those to whom the law applies. Law is itself is to be justified on the basis of an overarching value commitment: the function of ensuring some degree of social cohesion in a pluralistic society. However, according to Sirota and Mancini, this aim apparently can and should be achieved without prescribing or acknowledging any substantive content to the law at all, and leaving that matter to be determined by the proper legislative authorities.

Yet, the conception of law inherent in this critique rests on unstable foundations. It oscillates between two positions: on the one hand, it expounds arguments reminiscent of those found in the work of the foundational English legal positivists going back as far as John Austin, but on the other hand, it purports to affirm a conception of law that ascribes to it an intrinsic “value in ordering relations among individuals in large communities” and a “unique and precious function” emanating from the law “of providing a touchstone for the diverse members of pluralistic communities.”[10] The problem is that these two strands of thought are cut from different cloths.

Starting with the former position, it was Austin who asserted that “the existence of law is one thing; its merit or demerit is another.”[11] The result is that legal rules amount to nothing more, and nothing less, than social facts that can be identified without the need to agree or disagree with their content. As Joseph Raz would later call it, this is the “social thesis”, and in his positivist account it is, or at least was, all that is required for a theory of law to be properly deserving of the label:

A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on facts of human behaviour capable of being described in value-neutral terms, and applied without resort to moral argument.[12]

This particular thesis can and has been challenged repeatedly by jurists far more established than we, and it is not our intention to retread the critiques here.[13] In fact, it is not even necessary to do so, since there is another problem that arises from Sirota and Mancini’s argument. Specifically, there is an inherent contradiction in the way in which they justify their own recourse to a positivistic understanding of law, which is to say, due to their implicit appeal to the social utility of law. Let us explain.

Why do Sirota and Mancini urge us to see the law as valuable, such that we must preserve in the law “a fixed content independent of the views and preferences of those to whom the law applies?”[14] This brings us to the second part of their thesis. Roughly, their answer is that the law serves “valuable functions,” including promoting pluralism and channelling disagreements in society.[15] This is the tension to which we referred above, and it arises because these “functions” of law refer, for them, to the social utility of a legal system. Put differently, for them, the value-neutrality of law (what they call the law’s “fixed content”) depends upon the fact that it produces what they consider to be beneficial consequences in broader society. And this brings Sirota and Mancini’s position in line with the “classical” form of legal positivism that Dan Priel has ascribed to Jeremy Bentham and Thomas Hobbes, in which “theorizing about law [is] part of a broader inquiry . . . of theorizing about morals and politics,” and which differs from the perspective of natural lawyers only on the “correct metaphysical foundations and the image of human nature their legal theories assumed.”[16]

Crucially, then, the value or social utility of law is not a matter of fact at all, but itself depends on a particular normative framework. In the case of Sirota and Mancini, that implicit framework is a form of rules utilitarianism. That is, they contend that judges should apply value-neutral methods of interpretation because following this general rule is socially beneficial—i.e., the rule, if consistently followed, advances the function of promoting pluralism.[17] But what would happen under this view if a legislature were to enact a statute—an ‘illiberal’ statute—that undermined this function and threatened pluralism? Would judges then be allowed to disregard what the statute says, and to appeal instead to what amount from a positivist perspective to “extraneous moral and policy commitments”? Would they be able to disregard what the statute says if this allows them to uphold the function of the broader legal system? Sirota and Mancini are silent on this issue, at least as far as we can surmise.

Our point, we hasten to add, is not that the belief that a statute is undesirable (or even ‘illiberal’) should allow a judge to adopt an unfaithful interpretation of the statute. It is simply that, on Sirota and Mancini’s own terms, the “value” of law and the need to avoid judicial activism would appear to be contingent on the character of the political forces in society. With a ‘liberal’ legislature, the law would be valuable because it serves as a “touchstone” of pluralism; with an ‘illiberal’ legislature, it would lack such value because it would undermine pluralism. Either way, it is significant that on their view, this purported “value of the law” derives from and is dependent upon sociopolitical factors extrinsic to law itself.[18]

Now, if we are being charitable to the two authors, it appears to us that there is a relatively easy solution to the dilemma of the ‘illiberal legislature’, a solution offered by the social thesis as outlined above: the law remains the law, independent of its content, while the choice of what content actually goes into it is a matter of politics, and thus ostensibly for the legislatures, not the courts, to address. Such legislatures could, on this view, adopt a substantive content that reflects a commitment to the maximization of social utility, just as easily as they could adopt laws with discriminatory effects. To quote Austin again, on this view, what the law is, is one thing; its merit or demerit is another thing.

But this is a rather different assertion than the one Sirota and Mancini wish to make: namely, that the law is itself grounded in utility or “valuable functions.”[19] Only the Austinian assertion can reasonably claim to amount to a purely descriptive approach, and so can presumptively avoid reliance on “extraneous moral and policy commitments”, as they ostensibly understand these terms, when interpreting the meaning of any particular legislative enactment or constitutional provision. Acquiescing to the logic of the positivist approach thus extracts a price. It requires them to abandon the claim that law has an intrinsic value “independent of the views and preferences of those” who legislated or posited the law, much less any intrinsic value as “a touchstone” for pluralism.[20] Nonetheless, adopting this approach would, in its broad strokes at least, be compatible with the idea of common good originalism that Hammer now seeks to advance.

2. Originalism and the Common Good

Armed with this understanding of what a truly “value-neutral” approach to law should strive toward, it is a bit surprising that Sirota and Mancini should feel compelled to react as they do to Hammer’s proposed common good originalism, at least if we take their own commitment to neutrality at face value. In our view, their misgivings are likely due to a misapprehension of his proposal that conflates it with the common good constitutionalism advanced most notably by Adrian Vermeule. Hammer, of course, draws inspiration from Vermeule’s work, but his approach also departs from it significantly—or rather, does not depart from the more well-established and better-understood approach to constitutional interpretation favoured by American conservatives, namely originalism.

This feature, to us at least, is clear from the articles in which Hammer expounds his proposed theory. To quote one choice excerpt:

Fortunately, such a method of constitutional interpretation is not merely legitimate—it is the most authentic of all forms of originalist jurisprudence. That’s because it is anchored in the prescribed aims of the Constitution’s Preamble, the Constitution’s “statement to explain ‘whither we are going.’” While the Declaration of Independence—Abraham Lincoln’s “apple of gold” around which the Constitution was but a surrounding “frame of silver”—is undoubtedly important in constitutional interpretation, the geopolitical circumstances in July 1776 were quite different from those during the 1787 Constitutional Convention. The leading draftsmen of both documents, moreover, were also very different. It is rather curious, then, that the Preamble has been so readily ignored in constitutional interpretation. Common good originalism seeks to rectify this mistake.[21]

The focus in the above passage, then, remains squarely on the text of the U.S. Constitution, and particularly on what that text enacted. The Constitution, the legal instrument positively enacted by the constitutional assemblies, is given the place of honour at the interpretive table. The question that follows is simply what exactly is included in that document—or, what perhaps amounts to the same thing, how it should be authentically read. Hammer suggests that the Preamble of the U.S. Constitution provides us with a set of interpretive clues—i.e., a context—within which the rest of its provisions should be read. That these textual clues are geared towards a certain set of values that Hammer associates with “common good” conservatism is beside the point: he is sourcing his interpretation from the Constitutional text itself, not some extraneous well of moral values.

If we are being good positivists here, at least in the Austinian sense, then none of this should bother us in the least. Indeed, the notion of “contextual enrichment”—the idea that the context of an utterance or text can assist in fixing meaning—is familiar to originalist theorists,[22] and Hammer can readily be read as arguing that the historical context of its enactment imbued the U.S. Constitution with certain moral, philosophical, and metaphysical presuppositions that should guide the interpretation and/or construction of its text.[23] At worst, what Hammer’s theory signals is the possibility of a disagreement over what the text of the U.S. Constitution means, even abstracted from external sources. Simply put, he is saying that the “common good” in “common good originalism” can be traced to the text of the Constitution itself. And that is on all fours with the kind of inclusive legal positivism Sirota and Mancini espouse, in which judges may “engage in moral and practical reasoning” where “invite[d]” to do so by “constitution-makers and legislators.”[24]

This suggests that there are in fact two ways of objecting to Hammer’s argument, the first being to simply claim that his interpretation is not, in fact, supported by the Constitutional text. Such an argument may well prevail, though it is not in our view clear that this is the case. Certainly, Sirota and Mancini offer no arguments to support this contention, nor, more importantly, do they offer arguments against such a reading of the Canadian Constitution either. This is all the more surprising given that libertarian strands of thought were present in American jurisprudence even from the early days of the Republic, and so might reasonably be taken to have been enshrined in the U.S. Constitution. In Canada, it would instead be very difficult to support the view that our Constitutional order is founded on anything like this kind of thinking, especially as our Constitution—both unwritten and written—contains far more references to precisely the type of “common good” espoused by Hammer than could ever be amassed in favour of such a view in the United States. As Professor Bradley Miller (as he then was) has pointed out, for example, elements of a nonaggregative conception of collective interests—i.e.,an idea of the common good—can be discerned in Canadian jurisprudence even in such places as the test for the granting of an interlocutory injunction.[25]

The second way of objecting to Hammer’s arguments, by contrast, is to fall back on a direct challenge to the values that Hammer suggests are to be found in the text of the U.S. Constitution, and to defend instead the particular, libertarian-influenced vision of constitutionalism that Sirota and Mancini appear to prefer. Suffice it to say, this is not an option of which either author will want to admit availing themselves, but it remains an option nonetheless. Perhaps this solution might become more palatable should Sirota and Mancini resolve the tensions implicit in their own framework, by favouring the overarching value of law as a necessary element of a functioning pluralistic democracy. But this argument would take us out of Austinian legal positivism, and certainly out of the value-neutral application of law, entirely. What it would seek to show is that their preferred reading of the U.S. Constitution—or of the Canadian one, for that matter—must prevail because it is the only one that allows for the proper operation of a constitutional order, of the rule of law, at least in a modern Western democracy. Constitutionalism, they could say, requires adherence to a form of rules utilitarianism. And this is where their argument would start to look a lot more similar to the very kind of instrumentalist thinking with which they brand Vermeule’s “common good constitutionalism”.

3. The Common Good in Legal Interpretation

We turn, now, to the last point that should be made in response to Sirota and Mancini’s argument, assuming that it was meant to target Vermeule’s common good constitutionalism,[26] and not Hammer’s common good originalism. By contrast to Hammer’s approach, this is indeed one in which the “moral principles that would guide this endeavour are those drawn, above all, from the Catholic natural law tradition,”[27] as Sirota and Mancini correctly surmise. What this means is that the U.S. Constitution, or indeed the Canadian Constitution, qua positive legal enactment, is not the ultimate fount of legal normativity. Rather, because both are part of the positive law, they are posterior to, and must ultimately be understood through, the underlying principles of the natural law.

There is a lot to unpack here, and more than a few misapprehensions about the natural law tradition to clarify. To begin, the main point we would urge in response to Sirota and Mancini’s argument is this: natural law theory is not a framework that “look[s] to extraneous moral and policy commitments as guides for legal interpretation,”[28] but rather one that seeks to understand the law’s own, deeper rationality from within. In our view, this essential point underscores why it is important to distinguish the natural law approach from the one that Hammer favours, in which the principles of natural law—or something like them—are understood to have been incorporated into the Constitution by its framers. On Hammer’s account, these principles derive their authority from, and should thus ultimately be understood through, the positive legal enactment. Here, the situation is instead reversed. Natural law precedes, and more importantly grounds, the normativity of the posited Constitution, as well as the whole of the positive law. The Constitution cannot make sense as a work of reason without recourse to natural law principles, or so natural law theorists claim, and so these principles are every bit a part of the law, just as much as any legal text, rule or doctrine.

We see here that the typical contemporary view of the natural law, as something somehow apart from the positive law, yet justifying departure from the positive law, is largely a caricature. Indeed, most natural law theorists have rarely focused on that putative role of natural law in any meaningful way,[29] and to the extent that they have, the use of natural law as a justification for setting aside positive law has almost always been severely constrained. What natural law most properly concerns itself with instead is the exposition, interpretation and application of the positive law, which, again, proponents take as only capable of making sense when understood in the context that natural law principles provide. This being so, it follows that the form of the positive law—its text, rules and doctrines—are central to the natural law tradition, which, properly understood, has never held that the natural law has direct and unmediated application to any given society.[30] To the contrary, it is only upon this text, and these rules and doctrines, that natural law can have any juridical force whatsoever. The positive law and the natural law are reciprocally interrelated; within human relationships, each presupposes the other. Natural law reflects an idea of reason immanent in the positive law and lends it intelligibility; while in making its general precepts more specific, the positive law realizes and makes concrete the otherwise abstract elements of the natural law.[31]

In this regard, it is instructive to identify a possible symptom of the confusion about the natural law tradition we have diagnosed. In ascribing to Vermeule’s “common good constitutionalism” a desire to “impose some pre-determined set of values onto the law,” the authors also quote a description of his approach as one that would “involve officials reading vague clauses in an openly morally infused way . . . to reach determinations consistent with the common good.”[32] However, it should be understood that as Vermeule and others working in the natural law tradition use it, the term “determination” does not refer to fixing a preordained outcome. This is because the tradition sees the principles of natural law as under-determined in many cases; they do not offer self-executing commands or policy commitments. Rather, “determination” (determinatio) refers to a mode of relation between the natural law and the positive law, in which the latter is understood to be a concretization or specification of the former, which supplies sound, general principles of practical reasoning.[33] Far from demanding that judges superimpose a pre-determined outcome, the idea of specification calls for a respectful attitude toward other institutional actors involved in the “creative yet bounded role” of concretizing vague criteria.[34]

Accordingly, it is a gross distortion to regard the natural law, including the specific version championed by Vermeule, as an extrinsic imposition on the scheme of positive law. Pace Sirota and Mancini, the aspiration of natural law theorizing is not to embed pre-determined outcomes into the law, but to construe the law itself as permeated by reason.[35] Such an outlook, we suggest, puts into sharp relief the positivist’s preconception of the law as a mere instrumentality of the will of some law-giver.[36] And in deprecating as a subjective “policy preference” this aspiration to elaborate the reason in the law, Sirota and Mancini’s position on this point appears to echo a key refrain of the Critical Legal Studies movement, which questions the very idea that the law may “display, though always imperfectly, an intelligible moral order.”[37] From the perspective of the CLS movement, the law is not constituted by reason but by will; and as such, the law can only ever reflect the radical contingencies of the wills that brought it into being.

Moreover, it should also be clear from the foregoing that an orientation toward the “common good” does not imply that the jurist “wants to upturn settled jurisprudence” or is “skeptical about aspects of constitutional law that have been taken as a given for generations,” as Sirota and Mancini claim.[38] While a full exposition is beyond the scope of this essay, we observe that this charge overlooks that the common good itself calls for constraints on the judicial role. Contrary to claims that it “regards separation of powers as passé,”[39] the constitutional principle of separation of powers may well be justified by the fact the distinct powers—executive, legislative, and judicial—“are well-placed to identify different aspects of the common good.”[40] The common good prompts reflection upon the distinct domain of each branch of the state, a domain that is constituted not by external considerations of “efficiency”, welfare-maximization or aptness to promote a libertarian-influenced vision of the state, but by stable features intrinsic to the nature of each type of power.[41] In short, the powers are distinct because they are each directed to the common good in different ways.

From this perspective, the legislative and judicial powers must remain separate in virtue of their distinct natures and not thanks to any utilitarian calculation. This is entirely consistent with an orthodox view: that it is in the nature of the judicial power “to say what the law is,” not what it should be.[42] Conversely, the common good is hardly inimical to “the authority of democratic institutions.”[43] In fact, “the common good requires an institution that has the capacity to change the law” when reason dictates, and the well-formed legislature can be taken as legislating for the common good of the community.[44] It makes intelligible the need to respect legislative authority because “[t]he legislature responds to reasons to change that law” and its capacity to legislate is not exercised arbitrarily, but is the expression of a reasoned choice to change the law for the common good.[45]

This insight explains why juristic invocations of the “common good” are well within the mainstream of Canadian jurisprudence. We have already referred to the case law on interlocutory injunctions, where the Supreme Court of Canada emphasized that laws “enacted by democratically-elected legislatures [] are generally passed for the common good.”[46] To acknowledge the concept’s relation to interpretation is to break no new ground either, much less to introduce extraneous concepts into the law. As distinguished Canadian jurists have observed, “legislating is reasoned activity,”[47] and the object of legislation is “to secure the common good.”[48] And the insight brings to light one truth in the oft-abused notion of “purposive interpretation”, namely that all legislation is promulgated to fulfill an end—a telos—that is intelligible to reason. In the apt description of Professor Richard Ekins, legislators reason from “relatively abstract ends” toward “more particular states of affairs that are more attractive elaborations of the more abstract ends,” culminating in “a complex scheme of means-end relations, which the legislature may choose, in which case it acts intending the means and the ends” reflected in the legislative proposal.[49]

From this teleological outlook on the essential nature of legislation, it follows that the point of interpretation is to understand the legislature’s reasons for acting.[50] The focal inquiry is not what the legislature said, but what it did. Or, put differently, the object of interpretation “is not to interpret words but to interpret language use.”[51] Hence, as Justice Brown and others have explained, “statutory interpretation entails discerning legislative intent”—the legislature’s reasoned plan to alter the law—by examining the form in which that act is communicated, that is, “the words of the statute in their entire context.”[52] To interpret is to inquire about the reason the legislature chose the specific means, the specific determinatio,it adopted in pursuit of the ultimate common good.

In practice, the interpreter’s reflection on the common good serves to avoid the insipid literalism that undermines legislative intent. Consider, for example, R. v. Jarvis, a case concerning the interpretation of the voyeurism offence under the Criminal Code.[53] Whereas the majority of the Ontario Court of Appeal concluded from the dictionary definition of the word “privacy” that a high school was too public to be covered by the provision, Justice Huscroft dissented and approached the voyeurism provision from the standpoint that “Parliament can be taken to have made a reasoned choice for the common good.”[54] In contrast to the majority’s literalist view, he treated the provision as a reasoned act of law-making intended to promote an aspect of the common good, namely, the human goods of personal and sexual integrity.[55]

Our point here is not that a court may override the terms or the finitude of a statute.[56] In truth, legislation is inherently constrained by its terms, and no human law-giver can conceivably grant benediction to the common good across the whole of human affairs. Rather, our point is that the legislature’s reasoned choice is rendered intelligible by the idea of the common good, an aspect of which is the telos of all laws.[57] The task of the judge, acting in the common good, is to understand and give effect to the legislature’s specific chosen means, the determinatio, that is illuminated by reflection on the common good. [58] Such a modest conception of the judicial role belies the charge that promoting the common good means that “it is legitimate to impose [one’s] respective hierarchy of values on society through judicial and administrative fiat.”[59]

Returning to the allegation that common good jurisprudence is extrinsic to our legal traditions, we may look back even further to constitutional law “taken as a given for generations.”[60] It is arguable, we venture to say, that the enigmatic and celebrated judgment of Justice Rand in Saumur v. City of Quebec represents an implicit endorsement of the tradition of natural law theorizing.[61] In an evocative passage, Rand J. seems to invoke the idea of specification or determination of the “original freedoms” by the positive law embodied in “the creation of civil rights”:

Strictly speaking, civil rights arise from positive law; but freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order. It is in the circumscription of these liberties by the creation of civil rights in persons who may be injured by their exercise, and by the sanctions of public law, that the positive law operates. What we realize is the residue inside that periphery. Their significant relation to our law lies in this, that under its principles to which there are only minor exceptions, there is no prior or antecedent restraint placed upon them . . .[62]

In his suggestion that the “original freedoms” are “the primary conditions of [] community life within a legal order,” Rand J. gestures toward something akin to principles of natural law,[63] which by virtue of their primacy and generality have “a unity of interest and significance extending equally to every part of the Dominion.”[64] It is through the determination or “circumscription of these liberties” in the creation of concrete “civil rights against defamation, assault, false imprisonment and the like,” that the common good is “realize[d] . . . inside that periphery.”[65] Needless to say, the outcome and constitutional valence of the Saumur case refute the insinuation that natural law theory is nothing more than an artifice for anti-pluralist views.

4. Conclusion

It is, of course, not our intention to convince our friends of the ultimate merits of our position on the intellectual rigour and teachings of theories of natural law. Still, we hope to have shown that there is much to misapprehend but little to fear from the concept of the common good. What this understanding of the natural law tradition should underscore, moreover, is that appeals to natural law principles do not amount to a form of legal realism—as Sirota and Mancini appear to believe. Law, on this reading, is not simply what judges do,[66] nor is it naked power. Quite the contrary, as one recent post by Arizaga in our view cogently argues, it is in fact legal positivism that rests on a commitment to law as power.[67] And the caricature of natural law as allowing for the effacement of positive legal orders on a whim, is just that—a caricature, founded on a resolutely modern misunderstanding.

To inhabit a world of law is not to view it as the product of a disordered miscellany of individual wills, but to engage in the juristic enterprise of understanding its moral unity. What the natural law tradition avers, at its core, is that the positive law is infused with a deeper meaning, with a deeper significance, than it can be conferred as a contingent choice of some legislative or judicial will. In other words, it is to see the ensemble of legal doctrine as a whole painting and not merely “nothing but a smear of pigments.”[68] In this sense, the natural law framework is perhaps the only way in which any legal text, rule or doctrine can be truly intelligible as the product of reason and properly given the weight which it justly deserves.

Notes


[1] L. Sirota and M. Mancini, “Interpretation and the Value of Law” (22 February 2021), online (blog): Double Aspect <https://doubleaspect.blog/2021/02/22/interpretation-and-the-value-of-law/>.

[2] Ibid.

[3] J. Hammer, “Toward a New Jurisprudential Consensus” (18 February 2021), online: Public Discourse <https://www.thepublicdiscourse.com/2021/02/74146/>.

[4] Bostock v. Clayton County, 140 S. Ct. 1731 (2020).

[5] Sirota and Mancini, supra.

[6] Ibid.

[7] Ibid.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] John Austin, The Province of Jurisprudence Determined, W. Rumble, ed. (Cambridge: Cambridge University Press, 1995), at p. 157.

[12] J. Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), at pp. 39-40 (emphasis added).

[13] For an especially apposite critique of the “social fact” thesis, see J. M. Finnis, “On the Incoherence of Legal Positivism” (2000), 75 Notre Dame L. Rev. 1597.

[14] Sirota and Mancini, supra.

[15] Ibid.

[16] D. Priel, “Toward Classical Legal Positivism” (2015), 101 Va. L. Rev. 987, at p. 992.

[17] Sirota and Mancini, supra.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Hammer, supra.

[22] See, e.g. L. Solum, “Communicative Content and Legal Content” (2013), 89 Notre Dame L. Rev. 479, at p. 488; R. E. Barnett and E. D. Bernick, “The Letter and the Spirit: A Unified Theory of Originalism” (2018), 107 Geo. L.J. 1, at p. 34. See also L. Solum, “The Interpretation-Construction Distinction” (2010), 27 Const. Commentary 95.

[23] For discussion of “presupposition”, the idea that communicative content can be “provided by an unstated assumption or background belief that is conveyed by what is said,” see L. Solum, “Originalist Methodology” (2017), 84 U. Chi. L. Rev. 269, at pp. 289-90.

[24] Sirota and Mancini, supra.

[25] B. W. Miller, “Justification and Rights Limitations”, in G. Huscroft, ed., Expounding the Constitution: Essays in Constitutional Theory (Cambridge: Cambridge University Press, 2008), 93, at p. 104, citing Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110.

[26] A. Vermeule, “Beyond Originalism” (31 March 2020), online: The Atlantic <https://www.theatlantic.com/ideas/archive/2020/03/common-good-constitutionalism/609037/>.

[27] Sirota and Mancini, supra.

[28] Ibid. (emphasis added).

[29] See J. Finnis, Natural Law and Natural Rights, 2nd ed. (Oxford: Oxford University Press, 2011), at pp. 364-66.

[30] For a summary of the relation between natural law and human law, see J. Goyette, “On the Transcendence of the Political Common Good” (2013), 13 Natl. Cathol. Bioeth. Q. 133, at pp. 138-46.

[31] Aquinas, Summa theologiae, vol. I-II, q. 91, a. 3; q. 95, a. 2 [ST].

[32] Sirota and Mancini, supra (emphasis added).

[33] See A. Vermeule, “Deference and Determination” (2 December 2020), online (blog): Ius & Iustitium <https://iusetiustitium.com/deference-and-determination/>.

[34] See Pong Marketing and Promotions Inc. v. Ontario Media Development Corporation, 2018 ONCA 555, at para. 48, per Miller J.A.

[35] E. J. Weinrib, “Legal Formalism: On the Immanent Rationality of Law” (1988), 97 Yale L.J. 949, at p. 1016; ST, supra, vol. I-II, q. 90, a. 3; q. 92, a. 2; and q. 96, a. 5 (explaining that law is a work of reason). The idea that the law is animated by reason and a “moral concept of law [that] gives juridical law its brain,” rather than being a purely empirical phenomenon à la the social thesis, is shared by natural law theories generally, including the liberal thought of Immanuel Kant. See P. Capps and J. Rivers, “Kant’s Concept of Law” (2018), 63 Am. J. Juris. 259.

[36] Weinrib, supra, at p. 955 (“In the positivist conception, a legal reality is brought into existence by an act of will that transforms into law that which is otherwise not law.”).

[37] R. M. Unger, “The Critical Legal Studies Movement” (1983), 96 Harv. L. Rev. 561, at p. 565 (emphasis added).

[38] Sirota and Mancini, supra.

[39] Ibid.

[40] N. W. Barber, The Principles of Constitutionalism (Oxford: Oxford University Press, 2018), at p. 51 (emphasis added).

[41] See ibid., at pp. 51-56.

[42] Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, at p. 367, quoting Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), at p. 177 (emphasis added).

[43] Sirota and Mancini, supra.

[44] R. Ekins, The Nature of Legislative Intent (Oxford: Oxford University Press, 2012), at p. 120.

[45] Ibid., at pp. 123-24 (emphasis added).

[46] Metropolitan Stores, supra, at p. 135, per Beetz J. See also Harper v. Canada (Attorney General), 2000 SCC 57, [2000] 2 S.C.R. 764, at para. 9.

[47] R. v. Walsh, 2021 ONCA 43, at para. 133, per Miller J.A. (dissenting).

[48] Frank v. Canada (Attorney General), 2019 SCC 1, [2019] 1 S.C.R. 3, at para. 146, per Côté and Brown JJ. (dissenting), quoting R. Ekins, “Legislation as Reasoned Action”, in G. Webber et al., Legislated Rights: Securing Human Rights through Legislation (Cambridge: Cambridge University Press, 2018), 86, at p. 92.

[49] Ekins, “Legislation as Reasoned Action”, supra, at p. 100 (emphasis added).

[50] Ekins, The Nature of Legislative Intent, supra, at pp. 136-37.

[51] R. Ekins, “Objects of Interpretation” (2017), 32 Const. Commentary 1, at p. 2.

[52] British Columbia v. Philip Morris International, Inc., 2018 SCC 36, [2018] 2 S.C.R. 595, at para. 17; R. v. Paterson, 2017 SCC 15, at para. 31; Rogers Communications Inc. v. Voltage Pictures, LLC, 2018 SCC 38, [2018] 2 S.C.R. 643, at para. 20; Keatley Surveying Ltd. v. Teranet Inc., 2019 SCC 43, at para. 95, per Côté and Brown JJ. (dissenting).

[53] R. v. Jarvis, 2017 ONCA 778.

[54] Ibid., at para. 123, per Huscroft J.A. (dissenting).

[55] See ibid., at paras. 124-28, 132-33, per Huscroft J.A. (dissenting). The Supreme Court of Canada allowed the appeal: R. v. Jarvis, 2019 SCC 10, [2019] 1 S.C.R. 488. Regrettably, however, the Court’s majority judgment indulged in a literalism of its own, by asserting that the words “reasonable expectation of privacy” meant that Parliament intended to incorporate the Charter jurisprudence on s. 8 privacy rights to “inform the content and meaning of these words”: para. 56, per Wagner C.J. But as Justice Rowe, in concurrence, observed, this “would be to apply a meaning intended to substantiate a breach of an individual’s fundamental rights by a state actor to the inverse context of subjecting a citizen to criminal sanction”: para. 95, per Rowe J. (concurring). In fixating on the words, the majority overlooked that the voyeurism provision contributed to an altogether different aspect of the common good than the Charter right.

[56] See Ekins, The Nature of Legislative Intent, supra, at pp. 250-54 (“it is unsound to abandon the legislature’s intended meaning (and hence its lawmaking act) in preference for either the further end or ends for which the legislature acts, commonly termed the statutory purpose”).

[57] See, e.g. Jarvis, supra, at para. 123, per Huscroft J.A. (dissenting), citing Ekins, The Nature of Legislative Intent, supra, at pp. 246-47.

[58] See Walsh, supra, at para. 171, per Miller J.A. (dissenting).

[59] Sirota and Mancini, supra.

[60] Ibid.

[61] Saumur v. City of Quebec, [1953] 2 S.C.R. 299.

[62] Ibid., at p. 329 (emphasis added).

[63] Ibid.

[64] Switzman v. Elbling, [1957] S.C.R. 285, at p. 306, per Rand J.

[65] Saumur, supra, at p. 329.

[66] See A. Beever, “The Declaratory Theory of Law” (2013), 33 Oxford J. Leg. Stud. 421, at pp. 425-26, 439-44. See also W. Blackstone, Commentaries on the Law of England, bk. 1, D. Lemmings, ed. (Oxford: Oxford University Press, 2016), at p. 53: “the law, and the opinion of the judge are not always convertible terms, or one and the same thing; since it sometimes may happen that the judge may mistake the law” (emphasis in original).

[67] R. de Arizaga, “Notes on the Ius Commune – Part I: The Hydra of Legal Positivism” (23 February 2021), online (blog): Ius & Iustitium <https://iusetiustitium.com/notes-on-the-ius-commune-part-i-the-hydra-of-legal-positivism/>.

[68] R. Scruton, The Soul of the World (Princeton: Princeton University Press, 2016), at p. 40.

2 comments

  1. I’m afraid that most of what passes as legal philosophy in this article is sophomoric. By all means, criticize legal positivism and argue for some version of natural law theory. But do it accurately and properly. For the most part, it is very hard to understand what theses the authors think are essential to legal positivism. Where a characterization can be identified, it doesn’t fit anyone who currently identifies as a legal positivist. Legal rules amount to nothing more than social facts. Really? The idea that law cannot have non-instrumental value if the validity of the law is determined by some complex of social facts, not its content. Come on! These are basic errors. The authors are exactly the intended readership of “Legal Positivism: 5 1/2 Myths”.

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