The Nature of Legislative Intent

by Ekins, Richard

• ISBN13: 9780199646999
• ISBN10: 0199646996
• Format: Hardcover
• Copyright: 2012-12-12
• Publisher: Oxford University Press

Summary

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 Abbreviations	p. xiii
Introduction	p. 1
Sceptical Arguments	p. 15
Stipulating Legislative Intent	p. 15
Hermes and 'the Catalogue of Mysteries'	p. 20
The Unitary Model and Its Discontents	p. 30
An Alternative: the Voting Machine Model	p. 34
Arrow's Theorem and the Legislative Process	p. 40
Joint Intention and Group Agency	p. 47
The Futility of Summing Intentions	p. 47
Joint Intention and Group Action	p. 52
Complex Group Action	p. 57
Discursive Dilemmas and Collective Irrationality	p. 66
The Idea of Group Agency	p. 71
Legislating Without Reasoning	p. 77
The Forum of Policy	p. 77
Technical Problems With Preference Aggregation	p. 85
Reasons and Preferences	p. 88
The Authority of Unintentional Legislation	p. 94
Rationality and the Voting Machine	p. 99
The Minimal Intention Argument	p. 107
Intelligible Legislating	p. 112
What It Is to Legislate	p. 118
Legislative Capacity	p. 118
How One Reasons to Legislate	p. 127
The Act of Legislating	p. 135
Legislative Integrity	p. 139
The Legislative Assembly	p. 143
The Problem of the Sole Legislator	p. 143
Representation and Deliberation	p. 146
The Advantage of an Assembly	p. 155
The Internal Hierarchy of the Legislature	p. 161
Washington and Westminster	p. 169
Prospects for Reasoned Action	p. 173
Language Use and Intention	p. 180
The Language Code	p. 181
Language Use Is Rational Action	p. 193
The Underdetermination Thesis	p. 196
Pragmatics	p. 205
Legislative Language Use	p. 211
The Nature of Legislative Intent	p. 218
The Standing Intention of the Legislature	p. 219
Parliamentary Procedure	p. 224
Legislative Intent in Particular Acts	p. 230
Agency and Compromise	p. 236
Intentions in Interpretation	p. 244
The Object of Interpretation	p. 244
Intentions, Purposes, and Applications	p. 249
Legislative Context	p. 256
The Use and Misuse of Context: Some Examples	p. 261
The Relevance of Legislative History	p. 268
Equitable Interpretation	p. 275
Bibliography	p. 285
Index	p. 294
Table of Contents provided by Ingram. All Rights Reserved.