Legislative Intent, Collective Intentionality and Fictionalism

Abstract

It is commonly taken for granted that legislatures form intentions and act on them. When a legislature passes a law, it comes naturally to think that this is the law that the legislature intended to make. Furthermore, legal officials often claim that they interpret statutes according to the legislature’s intention, or on the basis of the ends that the legislature intended to pursue. Now the question is: can institutional entities such as legislatures have intentional attitudes? According to some writers, the answer is negative. Legislatures are not capable of forming genuine intentions. Legislative intentions can obviously be attributed to the members of a legislative body but individual intentions do not matter with regard to the statutory contents. This standpoint is puzzling, however. As a matter of political theory, it seems meaningless to give a legislative body law-making power unless the law that the members of this body make is the law they intended to make. Furthermore, any conception of judging rooted in the principle of legislative supremacy appears unintelligible without a conception of legislative intent. This is the reasons why a number of legal scholars defend the common view that legislatures do have intentions and act on them. To vindicate this view, however, one is to show that intentional attitudes can be attributed to legislative bodies and that such intentions can be known. An obvious way to address these issues is to rely on collective intentionality. The general idea is that legislative intent is something that individual legislators join together, that allows them to act in a coordinative and cooperative fashion and to achieve collective goals. Based on all this, I will defend four claims in this paper: (1) Individual legislators necessarily share a collective participatory intention when they legislate. A legislature is able to legislate only if individual legislators intend that the legislature enacts a statute. (2) However, participatory intentions do not determine statutory contents, nor individual legislators necessarily share any form of communicative intention when they participate in the legislative activity. (3) When legal officials resort to legislative intent in legal interpretation, they actually make reference to a fictional entity within a collective game of make-believe. (4) Yet, legislative intent qua fictional entity serves important functions in current legal systems. It is the cornerstone of a set of argumentative frameworks that provide guidance to judicial interpretation, contribute to align individual expectations with regard to statutory contents, put constraints on how litigants and courts pursue their goals, help identifying the interpretive practice legal officials are engaged in. In short, legislative intent is a coordination tool for practice of legal officials. Furthermore, fictionalism calls attention to the fact that when judges interpret statuses according to legislative intent, they actually employ various interpretative frameworks that are grounded on concurrent principles and values. Choosing one doctrine of legislative intent over the others ultimately depends on the normative claim that this choice will make legal interpretation better.