At Double Aspect, Leonid Sirota & Mark Mancini: Interpretation and the Value of Law II (responding the this essay by Stéphane Sérafin et al., critiquing an earlier Sirota & Mancini post). Here is the introduction:
We read with interest Stéphane Sérafin, Kerry Sun, and Xavier Foccroulle Ménard’s reply to our earlier post on legal interpretation. In a nutshell, we argued that those who interpret legal texts such as constitutions or statutes should apply established legal techniques without regard for the political valence of outcomes. Only in this way can law function as a common reference and guide in a pluralistic, democratic society in which, as Madison eloquently argued in Federalist No. 10, disagreement about fundamental values and the policies required to implement them is pervasive and bound to remain so “[a]s long as the reason of man continues fallible, and he is at liberty to exercise it”.
Our interlocutors claim that our argument leads legal interpretation into “insipid literalism” and, ultimately, sees law as nothing more than a form given to the outcome of power struggles, rather than as the product of reason striving to advance the common good. We remain unconvinced. Our interlocutors seem to wish to escape the more controversial uses to which the “common good” term has been put, but rely on ambiguous claims in doing so. We write today to address some of these claims.
The bottom line is this: if our interlocutors wish to fundamentally change the way we understand texts by sotto voce urging interpreters to adopt a “substantively conservative” position at the outset of the interpretive task, we must dissent. If they wish to simply “tune-up” the way we use purpose and context to enrich our understanding of bare texts, then that is a worthy contribution to the ongoing effort in which many of us are engaged: trying to make Canadian interpretation more workable, less results-oriented, and more focused on the text itself, understood in light of its legislative context in real, practical cases.
Our response is divided into two parts. First, we describe how our interlocutors misunderstand the relationship between, as Jeremy Waldron put it, “The Concept and the Rule of Law”. Second, we catalogue the ways in which our interlocutors’ position is muddled.
Posted at 6:33 AM