At The New Rambler, Timothy Grinsell (Univ. of Chicago, Linguistics): The Best of All Possible Congresses (reviewing [favorably] Richard Ekins, The Nature of Legislative Intent [Oxford 2012]). From the review:
Ekins thus sets out to defend the scholastically unpopular position that legislative intent is neither a contradiction nor a useful fiction, but a necessary part of lawmaking. In order to mount this defense, Ekins confronts three questions: does legislative intent exist, what is it like, and how do we find it? In answering the first question, at least, Ekins has made a fresh contribution to a debate that had almost gone stale. His two most important additions are a defense of the legislature as an intentional group and a linguistically informed treatment of intention in communication.
The argument against the existence of legislative intent, embraced by many philosophers but also by lawyers and judges like Antonin Scalia, is intuitive. There are many legislators’ intents, and there is no clear way to add them together. Therefore, there is no legislative intent. In political scientist Kenneth Shepsle’s memorable phrase, “Congress is a ‘they,’ not an ‘it.’”
Ekins persuasively responds that trying to add intents together is the wrong way to think about legislative intent. Rather, relying on work in the philosophy of agency, Ekins argues that groups like the legislature have intent because they coordinate in particular ways. “Group action is the coordinated pursuit of a common purpose by means of a jointly accepted plan of action” (53). Translating from Oxfordese (in which most of the book is written, alas), this means that members of an intentional group share a goal, they each intend to do their agreed-upon part to achieve that goal, and they agree to refrain from frustrating other group members in the pursuit of their allotted tasks. For example, two people agreeing to make sausage together might form an intentional group. One person grinds the meat, one person stuffs the casings, and they try not to get in each other’s way.
And here is the book description from Amazon:
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.
(Via Brian Leiter).
Posted at 6:21 AM