The Nature of Legislative Intent

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  • Format: Hardcover
  • Copyright: 2012-12-12
  • Publisher: Oxford University Press

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Are legislatures able to form and act on intentions? The question matters because the interpretation of statutes is often thought to centre on the intention of the legislature and because the way in which the legislature acts is relevant to the authority it does or should enjoy. Many scholars argue that legislative intent is a fiction: the legislative assembly is a large, diverse group rather than a single person and it seems a mystery how the intentions of the individual legislators might somehow add up to a coherent group intention. This book argues that in enacting a statute the well-formed legislature forms and acts on a detailed intention, which is the legislative intent. The foundation of the argument is an analysis of how the members of purposive groups act together by way of common plans, sometimes forming complex group agents. The book extends this analysis to the legislature, considering what it is to legislate and how members of the assembly cooperate to legislate. The book argues that to legislate is to choose to change the law for some reason: the well-formed legislature has the capacity to consider what should be done and to act to that end. This argument is supported by reflection on the centrality of intention to the nature of language use. The book then explains in detail how members of the assembly form and act on joint intentions, which do not reduce to the intentions of each member, before outlining some implications of this account for the practice of statutory interpretation. Developing a robust account of the nature and importance of legislative intention, the book represents a significant contribution to the literature on deliberative democracy that will be of interest to all those thinking about legal interpretation and constitutional theory. Oxford Legal Philosophypublishes the best new work in philosophically-oriented legal theory. It commissions and solicits monographs in all branches of the subject, including works on philosophical issues in all areas of public and private law, and in the national, transnational, and international realms; studies of the nature of law, legal institutions, and legal reasoning; treatments of problems in political morality as they bear on law; and explorations in the nature and development of legal philosophy itself. The series represents diverse traditions of thought but always with an emphasis on rigour and originality. It sets the standard in contemporary jurisprudence.

Author Biography

Richard Ekins is a Fellow of St John's College, Oxford. He previously taught at Balliol College, Oxford and the Faculty of Law at the University of Auckland and served as a Judge's Clerk at the High Court of New Zealand at Auckland. He is the editor of Modern Challenges to the Rule of Law (2011) and has published articles in The Law Quarterly Review, Ratio Juris, New Zealand Law Review, Public Law and the Australian Journal of Legal Philosophy. His work has been cited in the House of Lords and in the superior courts and Parliament of New Zealand.

Table of Contents

List of Abbreviationsp. xiii
Introductionp. 1
Sceptical Argumentsp. 15
Stipulating Legislative Intentp. 15
Hermes and 'the Catalogue of Mysteries'p. 20
The Unitary Model and Its Discontentsp. 30
An Alternative: the Voting Machine Modelp. 34
Arrow's Theorem and the Legislative Processp. 40
Joint Intention and Group Agencyp. 47
The Futility of Summing Intentionsp. 47
Joint Intention and Group Actionp. 52
Complex Group Actionp. 57
Discursive Dilemmas and Collective Irrationalityp. 66
The Idea of Group Agencyp. 71
Legislating Without Reasoningp. 77
The Forum of Policyp. 77
Technical Problems With Preference Aggregationp. 85
Reasons and Preferencesp. 88
The Authority of Unintentional Legislationp. 94
Rationality and the Voting Machinep. 99
The Minimal Intention Argumentp. 107
Intelligible Legislatingp. 112
What It Is to Legislatep. 118
Legislative Capacityp. 118
How One Reasons to Legislatep. 127
The Act of Legislatingp. 135
Legislative Integrityp. 139
The Legislative Assemblyp. 143
The Problem of the Sole Legislatorp. 143
Representation and Deliberationp. 146
The Advantage of an Assemblyp. 155
The Internal Hierarchy of the Legislaturep. 161
Washington and Westminsterp. 169
Prospects for Reasoned Actionp. 173
Language Use and Intentionp. 180
The Language Codep. 181
Language Use Is Rational Actionp. 193
The Underdetermination Thesisp. 196
Pragmaticsp. 205
Legislative Language Usep. 211
The Nature of Legislative Intentp. 218
The Standing Intention of the Legislaturep. 219
Parliamentary Procedurep. 224
Legislative Intent in Particular Actsp. 230
Agency and Compromisep. 236
Intentions in Interpretationp. 244
The Object of Interpretationp. 244
Intentions, Purposes, and Applicationsp. 249
Legislative Contextp. 256
The Use and Misuse of Context: Some Examplesp. 261
The Relevance of Legislative Historyp. 268
Equitable Interpretationp. 275
Bibliographyp. 285
Indexp. 294
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