An Uncommon Attitude Towards Legislative IntentionsDavid Tan (Deakin University)
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Legal philosophers have recently started using collective intentions (specifically of the type List calls common attitudes) to conceptualise the notion of legislative intentions. This is a crucial part of debates in statutory and constitutional interpretation. In the 90s, social choice theory (i.e. aggregative methods) was used to justify the existence of legislative intentions. However, this approach has fallen out of favour and Richard Ekins has influentially argued that we must rely on collective intentionality and not mere aggregation.
This paper argues against Ekins’ position. Firstly, Ekins posits that aggregative methods are unsustainable due to mathematical problems. However, I argue that collective intentionality requires aggregation as well. Secondly, collective legislative intentions do a bad job at explaining how legislatures communicate through statutes. The kind of activities that collective intentions are traditionally used to explain are not present in the legislative context. Thirdly, I address Ekins’ claim that legislative intentions based on mere aggregation would have no legislative authority.
David Tan is a Lecturer in Deakin Law School and specialises in analytic legal philosophy. His main research areas are in linguistic approaches to legal interpretation and constitutional theory
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